DEPARTMENT OF HUMAN SERVICES & MILLER-BARNES

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF HUMAN SERVICES & MILLER-BARNES

[2011] FamCA 335

FAMILY LAW – CHILD ABDUCTION – Hague convention

APPLICANT:

Director-General
Department of Human Services

RESPONDENT:

Ms Miller-Barnes

FILE NUMBER:

SYC

6949

2010

DATE DELIVERED:

12 April 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

14 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Ward

SOLICITOR FOR THE APPLICANT:

Department of Human Services

COUNSEL FOR THE RESPONDENT:

Ms Winfield

SOLICITOR FOR THE RESPONDENT:

Graeme J Peters Solicitors

Orders

That the Director-General, Department of Human Services, Community Services and the respondent mother make such arrangements as are necessary to cause the return of the child D, born … May 2008, to New Zealand as soon as is practicable and no later than 14 days from the date of this order.

It is noted that publication of this judgment under the pseudonym Department of Human Services & Miller-Barnes is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6949 of 2010

Director-General Department of Human Services

Applicant

And

Ms Miller-Barnes

Respondent

REASONS FOR JUDGMENT

the proceedings

On 3 November 2010 the Director-General, Department of Human Services (New South Wales) in her capacity as State Central Authority (“the Central Authority”) filed an application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) seeking orders for the return to New Zealand of the child D born in May 2008. His parents are Ms Miller-Barnes and Mr East).
The mother made certain concessions which were set out in writing in a document which became exhibit 1. This document read (verbatim) as follows:
“The mother concedes:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body;
(i)was actually exercising the rights of custody (either jointly or alone); or
But does not concede:
(ii)the father would have exercised those rights if the child had not been removed or retained.
The mother asks the court to not make the order pursuant to regulation 16(3):
(3)      A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a)      the person, institution or other body seeking the child’s return;
(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(a)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(b)       …..
(c)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.”
It thus seems that the mother opposed the application on two bases:
1.The father would not have exercised rights of custody if the child had not been wrongfully removed or retained.
2.A defence pursuant to Regulation 16(3) has been made out, such that the court in the exercise of its discretion should decline to make a return order.
In final submissions counsel for the mother conceded that “the human rights defence has not been made out”. I enquired of counsel as to the relevance of a finding to the effect that “the father would not have exercised rights of custody, if the child had not been removed or retained”. I was told only that “this is one of the matters that the mother asks to be taken into account”.
I did not understand this submission to be to the effect that the father “was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained” within the meaning of Regulation 16(3)(i). In fact, the document submitted by the mother’s counsel specifically recorded that concession. The suggestion seemed to be that the father would stop spending time with the child at some unidentified time in the future.

Background

The father was born in 1990 and is now 20 years old. The mother was born in 1991 and is now 19 years old. They commenced a relationship in mid-2007 and separated finally in October 2009. They both described their relationship as “off and on” between July 2008 and October 2009.
On 11 September 2008 the mother filed an application for a temporary protection order in New Zealand. This order was made on 23 September 2008 and became final on 24 December 2008, but was discharged on 4 March 2009.
On 10 December 2009 the mother filed another application for a temporary protection order. A final protection order was made on 21 January 2010 and discharged on 28 April 2010.
On 30 October 2008 his Honour Judge Whitehead found “…there are no safety issues if there is unsupervised contact between [the father] and [D]”. His Honour commented that it may be appropriate for “a weaning in period of time” when contact took place in the presence of another person, before the commencement of unsupervised contact.
On 4 March 2009 his Honour Judge Fraser made parenting orders by consent. These orders provided that D live with the mother and spend unsupervised time with the father for a minimum of two nights per week. His Honour noted “it has been conceded by the parties that there has been a dramatic change in their relationship and that it is acknowledged that the stress of the separations in the past and in [the mother’s] view and [the father’s] view there is no longer a need for a final protection order”.
On 28 April 2010 his Honour Judge Fraser stated: “it would appear that any domestic violence, if there has been of recent times, is in the nature of psychological abuse. Physical abuse currently is not alleged. There are also allegations that [the father] may well have encouraged others to engage in actions which might be seen as domestic violence, although [the father] has not been questioned in regard to that and Mr O’Connell has made a submission that it is not appropriate to re-litigate matters at this point based on evidence which has led to orders being made.”
On 10 May 2010 there were consent orders made which varied the arrangements for D to spend time with the father. These orders provided that he spend two out of three weekends, from Friday afternoon until Monday morning, with the father. There was provision for time with each parent on his birthday and Christmas Day.
According to the father D spent time with him on the following dates in 2010:
10 & 11 January
22 to 24 January
6 & 7 February
10 & 11 February
19 & 20 February
24 February
6 & 7 March
17 March
19 & 20 March
16 to 18 April
30 April to 2 May
14 to 16 May
28 to 30 May
11 to 13 June
25 to 27 June
9 to 11 July
23 & 24 July
The mother maintained that D spent time with the father on only three occasions between late 2009 and her departure to Australia on 26 July 2010. She alleged that he was with the father from the afternoon of Christmas Day until Boxing Day; on two nights in February 2010 and from 5:00pm on 25 July 2010 until 8:00am on the following day.
There was no independent evidence of the time which D spent with his father during that period. In his brief cross-examination by telephone, the father was adamant that these dates were recorded by his mother in a diary and were correct. He said: “I tried to see him as much as I could”. I am inclined to accept his evidence. For reasons which appear below, I have some doubts about the mother’s credit.
In July 2010 the mother obtained a passport for D without the father’s knowledge or consent. On 26 July 2010 she brought him to Australia, travelling with her mother and two year old brother.
Initially they stayed with the mother’s grandmother at her rented home at Town 1 on the New South Wales Central Coast. Their presence constituted a breach of the grandmother’s lease and they were all evicted in October 2010.
They all then moved to Town 2 and stayed with a friend of the grandmother. On 29 November 2010 the maternal grandmother and her son returned to New Zealand.
The mother and D then moved into the home of her boyfriend, Mr S, and his mother at Town 1. The mother had commenced a relationship with him two days after she arrived in Australia. In January 2011 Ms S required the mother and D to leave her home and they moved into a refuge.
The father learned from a friend of the mother on 9 August 2010 that she and D had left New Zealand and travelled to Australia. The father’s unchallenged evidence was that he became aware that the mother did not intend to return to New Zealand approximately four weeks after her departure. He then contacted his lawyer and, on 11 October 2010, the New Zealand Central Authority made a written request for the return of the child to the Commonwealth Central Authority. In turn, the Commonwealth Central Authority referred the request to the New South Wales Authority by letter dated 27 October 2010. The present application was filed on 3 November 2010.
The Outline of Case submitted on behalf of the mother raised the prospect of a defence of acquiescence by the father. This argument did appear to be pursued by her counsel. For the sake of completeness, I observe that this sequence of events suggests that the father acted as expeditiously as possible to secure D’s return to New Zealand. I find that he did not acquiesce in the child’s retention in Australia.
On 28 February 2011 the mother sent to the father a Facebook message which stated “Hay my dads bookn myn n [D’s] flight tickets so kuld u drop the charges n [D] n I wil kum hme plz dwop da charge”.
In cross-examination she said: “In a way I would be prepared to go back. I miss my family in New Zealand”.

The Relevant Law

Australia and New Zealand are signatories to the Convention on the Civil Aspects of International Child Abduction. The Australian provisions for implementation of that Convention are contained in section 111B of the Family Law Act 1975 (Cth) and associated Regulations. Section 111B provides:
(1) The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention) but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia.
(1A) In relation to proceedings under regulations made for the purposes of subsection (1), the regulations may make provision:
(a) relating to the onus of establishing that a child should not be returned under the Convention; and
(b) establishing rebuttable presumptions in favour of returning a child under the Convention; and
(c) relating to a Central Authority within the meaning of the regulations applying on behalf of another person for a parenting order that deals with the person or persons with whom a child is to spend time or communicate if the outcome of the proceedings is that the child is not to be returned under the Convention.
(1B) The regulations made for the purposes of this section must not allow an objection by a child to return under the Convention to be taken into account in proceedings unless the objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes.
(1C) A Central Authority within the meaning of the regulations may arrange to place a child, who has been returned to Australia under the Convention, with an appropriate person, institution or other body to secure the child's welfare until a court exercising jurisdiction under this Act makes an order (including an interim order) for the child's care, welfare or development.
(1D) A Central Authority may do so despite any orders made by a court before the child's return to Australia.
(1E) Any regulations made for the purposes of this section to give effect to Article 21 (rights of access) of the Convention may have effect regardless of:
(a) whether an order or determination (however described) has been made under a law in force in another Convention country (within the meaning of the regulations made for the purposes of this section), with respect to rights of access to the child concerned; or
(b) if the child was removed to Australia--when that happened; or
(c) whether the child has been wrongfully removed to, or retained in, Australia.
(2) Because of amendments of this Act made by the Family Law Reform Act 1995 :
(a) a parent or guardian of a child is no longer expressly stated to have custody of the child; and
(b) a court can no longer make an order under this Act expressed in terms of granting a person custody of, or access to, a child.
(3) The purpose of subsection (4) is to resolve doubts about the implications of these changes for the Convention. That is the only purpose of the subsection.
(4) For the purposes of the Convention:
(a) each of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any order of a court for the time being in force; and
(b) subject to any order of a court for the time being in force, a person:
(i) with whom a child is to live under a parenting order; or
(ii) who has parental responsibility for a child under a parenting order;
should be regarded as having rights of custody in respect of the child; and
(c) subject to any order of a court for the time being in force, a person who has parental responsibility for a child because of the operation of this Act or another Australian law and is responsible for the day to day or long term care, welfare and development of the child should be regarded as having rights of custody in respect of the child; and
(d) subject to any order of a court for the time being in force, a person:
(i) with whom a child is to spend time under a parenting order; or
(ii) with whom a child is to communicate under a parenting order;
should be regarded as having a right of access to the child.
Note: The references in paragraphs (b) and (d) to parenting orders also cover provisions of parenting agreements registered under section 63E (see section 63F, in particular subsection (3)).
(5) Subsection (4) is not intended to be a complete statement of the circumstances in which, under the laws of the Commonwealth, the States and the Territories, a person has, for the purposes of the Convention, custody of, or access to, a child, or a right or rights of custody or access in relation to a child.
(5A) Subsections (1A) and (2) to (5) do not, by implication, limit subsection (1).
(6) Expressions used in this section have the same meaning as they have in Part VII.
The relevant Regulations are the Family Law (Child Abduction Convention) Regulations 1986. Regulation 16 sets out the court’s obligation to make a return order and provides:
(1) If:
(a) an application for a return order for a child is made; and
(b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and
(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A) For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b) the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and
(c) the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and
(d) the child's removal to, or retention in, Australia is in breach of those rights of custody; and
(e) at the time of the child's removal or retention, the person, institution or other body:
(i) was actually exercising the rights of custody (either jointly or alone); or
(ii) would have exercised those rights if the child had not been removed or retained.
(2) If:
(a) an application for a return order for a child is made; and
(b) the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c) the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child's return:
(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) each of the following applies:
(i) the child objects to being returned;
(ii) the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4) For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5) The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.

The Evidence and Witnesses

A number of documents were annexed to an affidavit sworn on 10 March 2011 by Ms Madelaine Audrey Pereira, the solicitor who conducted the proceedings on behalf of the applicant. Annexure A was an affidavit sworn by the father on 9 March 2011, which in turn annexed “the Evidence Book presented to the Family Court at [New Zealand Town 3] by the respondent for the hearing set down for 28 April 2010 and [the father’s] responding affidavit evidence”. This material consisted of:
“1.Second Affidavit of [the mother] in Response to Application for Discharge of Protection Order dated 16 April 2010
2.Affidavit of [the father] dated 7 April 2010
3.Affidavit of [the mother] in Support of Notice of Defence to Application for Discharge of a Protection Order dated 24 March 2010
4.Affidavit of [the father] dated 12 March 2010
5.Affidavit of Ms G dated 18 December 2009
6.Affidavit of Ms W dated 18 December 2009
7.Affidavit of [the mother] in Support of On Notice Application for a Protection Order dated 10 December 2009”

Counsel for the mother objected to the admission of these affidavits on the basis that this material is not caught by Regulation 29(2), which provides:
“The application under regulation 14, 19A or 25, or a request under regulation 13, 24 or 25 relating to that application, or any document attached to or given in support of that application or request, is admissible as evidence of the facts stated in that application, request or document.”
Counsel relied on the decision of Faulks DCJ in State Central Authority and Henfold [2010] FamCA 1172, which she maintained supported her position.
In fact Faulks DCJ said:
“21. the Central Authority relied upon an affidavit of the mother which contained material which would ordinarily not be admissible with the rules of evidence, but which became so as a consequence of the combined effects of s.111D of the Family Law Act 1975 (Cth) and Regulation 29(2). As was conceded in reliance upon s.111D and Regulation 29(2), the admissibility of the material did not necessarily provide any determination as to the weight to be given to that evidence.”
It is clear to me that his Honour made no ruling which provides any support to the objection taken by counsel for the mother. I thus admitted into evidence the affidavits filed in the New Zealand proceedings. Of course, the issue of the weight to be given to this untested material is another matter.

Rights of Custody

The mother’s argument against a return order based on a rights of custody issue never became clear to me. It seems obvious that the father was “actually exercising rights of custody” when the mother wrongfully removed D from New Zealand and retained him in Australia. It is necessary to have regard to relevant New Zealand law to determine whether the father had, and was exercising, rights of custody at the time of the wrongful removal of the child: Director-General, Department of Community Services v Crowe & Others (1996) 21 Fam LR 159 at 175.
Attached to the application was an affidavit sworn on 7 October 2010 by Ms Joan Ellena Key, a barrister and solicitor of the High Court of New Zealand, which is admissible pursuant to Regulation 29. Ms Key set out the applicable New Zealand law and opined that the father was exercising rights of custody when the child was wrongfully removed from New Zealand and retained in Australia by the mother.
Ms Key’s affidavit relevantly stated:
“3. The applicable law in New Zealand is the Care of Children Act 2004.
4.Section 102 of the Care of Children Act 2004 states:
(1)where a person claims:
(a)That a child has been removed from New Zealand to another Contracting State; and
(b)That the child was removed from New Zealand to that other Contracting State in breach of that person’s right of custody in respect of the child; and
(c)That at the time of that removal these rights of custody were actually being exercised by that person, or would have been exercised but for removal; and
(d)That the child was habitually resident in New Zealand immediately before the removal –
That person may apply in writing to the authority to have that claim transmitted to the other Contracting State.
(2)Every application under sub-section (1) of this Section shall be in the form prescribed by rules made under the principal Act.
(3)Where the Authority is satisfied that an application made under sub-section (1) of this section is in accordance with the requirements of the Convention, the Authority shall take on behalf of the applicant any action required to be taken by the Authority under the Convention.
5.Section 97 of the Care of Children Act 2004 provides:
For the purposes of this subpart, rights of custody, in relation to a child, include the following rights attributed to a person, institution, or other body, either jointly or alone, under the law of the Contracting State in which the child was habitually resident immediately before the child’s removal or retention:
(e)rights relating to the care of the person of the child (for example, the role of providing day-to-day care for the child); and
(f)in particular, the right to determine the child’s place of residence.’
6.Section 18 of the Care of Children Act 2004 states:
‘A child’s father who is not a guardian of the child just because of section 17(2) or (3) becomes a guardian of the child if his particulars are registered after the commencement of this section as part of the child’s birth information because he and the child’s mother both notified the birth as required by section 9 of the Births, Deaths, Marriages, and Relationships Registration Act 1995.’
7.The evidence of the applicant, [the father] establishes that he is a guardian of the child jointly with the mother. The basis of this assertion is that he is registered as the child’s father on the child’s birth certificate. Under s18 of the Care of Children Act 2004, he is a guardian to the child.
8.Section 15 of the Care of Children Act 2004 defines guardianship as:
‘For the purposes of this Act, guardianship of a child means having (and therefore a guardian of the children has), in relation to the child –
a.All duties, powers, rights and responsibilities that a parent of the child has in relation to the upbringing of the child;
b.Every duty, power, right and responsibility that is vested in the guardian of a child by any enactment;
c.Every duty, power, right and responsibility that, immediately before the commencement on 1 January 1970 of the Guardianship Act 1968, was vested in a sole guardian of a child by enactment or rule of law.’
9.Section 16 of the Care of Children Act 2004 states:
‘(1)The duties, powers, rights and responsibilities of a guardian of a child include (without limitation) the guardians –
a.Having the role of providing day to day care for the child (however, under s26(5), no testamentary guardian of a child has that role just because of an appointment under s26); and
b.Contributing the child’s intellectual, emotional, physical, social, cultural and other personal developments; and
c.Determining for or with the child, or helping the child to determine, questions about important matters affecting the child.
(2)Important matters affecting the child include (without limitation)
(a)The child’s name (and any changes to it); and
(b)Changes to the child’s place of residence (including without limitation, changes of that kind arising from travel by the child) that may affect the child’s relationship with his or her parents and guardians; and…
(3)The guardian of a child may exercise (or continue to exercise) the duties, powers, rights and responsibilities of a guardian in relation to the child, whether or not the child lives with the guardian, unless a Court order provides otherwise.
(4)However, in exercising (or continuing to exercise) the duties, powers, rights and responsibilities of a guardian in relation to a child, a guardian of a child must act jointly (in particular, by consulting wherever practicable with the aim of securing agreement) with any other guardians of the child.’
10.Sections 94 to 124 of the Care of Children Act 2004 replace the provisions of the Guardianship Amendment Act 1991. The purpose of ss94 to 124 of the Act is to (inter alia) implement under New Zealand law the Hague Convention on the Civil Aspects of International Child Abduction.
11.In Gross v Boda [1995] NZFLR 49, the New Zealand Court of Appeal held that custody and access were not mutually exclusive terms. In Dellabarca v Christie [1999] NZFLR 97 the Court of Appeal held that any qualifying right in respect of the care of a child was a right of custody. [The father] has been granted a Parenting Order providing for him to have contact with the child.
12.In C v C [1989] WLR 654; 2 All ER 465 (CA) it was held that the right of a person simply to withhold consent to a child leaving the country was a right of custody.
13.It is submitted that [the father] possesses the right to have contact with the child as per the terms of the Parenting Order as to Contact granted to him on 4 March 2009 and has ‘the right to determine the child’s place of residence’ (until the child attains the age of 18 years) as an incident of guardianship under s16 (2)(b) of the Care of Children Act 2004 and therefore has rights of custody as defined in s97 of the Care of Children Act 2004.”
There was no submission on behalf of the mother that any of Ms Key’s evidence as to the applicable New Zealand law was incorrect. There was no challenge to her opinion that the father was exercising rights of custody when the mother wrongfully removed the child from New Zealand and retained him in Australia.
On the mother’s own case the father had the care of D for two days prior to her departure for Australia on 26 July 2010. There was no dispute that the orders of 4 March 2009 provided for the child to spend time with the father and that he in fact did so.
I have no hesitation in finding that the father was exercising rights of custody when the mother wrongfully removed D from New Zealand and retained him in Australia. I see no relevance in the mother’s argument that he would not have exercised rights of custody if the child had remained in New Zealand. In any event, she failed to prove that he would not do so.

Grave Risk

In Director-General, Department of Community Services v Timms (2008) FLC 93-376 the Full Court said, at pp 82, 653 – 82,654:
“49. The proper interpretation of reg 16(3) has been settled by the majority judgment of the High Court in the cases of DP v Central Authority; JLM v Director-General, NSW Department of Community Services… where Gaudron, Gummow and Hayne JJ said:
‘so far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that ‘there is a grave risk that [his or her] return…..would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’.
If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
50. In the same judgment the majority dismissed the proposition that reg 16(3)(b) and 16(3)(d) are to be narrowly construed:
Narrow construction?
In the judgment of the Full Court…..[e]xactly what is meant by saying the reg 16(3)(b) is to be narrowly construed is not self-evident. On its face reg 16(3)(b) presents no difficult question of construction and is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in ‘an intolerable situation’. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description ‘grave’. Leaving aside the reference to ‘intolerable situation’, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a ‘narrow’ rather than a ‘broad’ construction. There is, in these circumstances, no evident choice to be made between a ‘narrow’ and ‘broad’ construction of the regulation. If that is what is meant by saying that it is to be given a ‘narrow construction’ it must be rejected. The exception is to be given the meaning its words require.
That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.”
The mother alleged that there was a pattern of sustained violence directed at her by the father throughout their relationship. She further alleged that he inflicted injuries on D’s face, legs and hand on three separate occasions. In my view, these allegations sit uncomfortably with the history of the litigation in New Zealand.
In cross-examination the father conceded that he used marijuana and that there could have been incidents which he does not remember due to excessive consumption of alcohol. He said, convincingly in my view, that “we both drank a lot” and “were both verbally abusive”. He conceded that he sent “a lot of text messages” to the mother, some of which “were abusive”.
The mother conceded that she, too, used marijuana. On any view, it seems plain that the parents’ relationship was unstable, volatile and characterised by substance abuse. I am mindful of the observation of his Honour Judge Fraser, on 4 March 2009, that “it has been conceded by the parties that there has been a dramatic change in their relationship and…there is no longer a need for a final protection order”.
The mother’s concessions and agreements to various parenting orders in the New Zealand proceedings are somewhat inconsistent with the case which she now advances against a return order. A striking example was the mother’s allegation in these proceedings that the father held a gun to her head some time in late 2008, which rated no mention whatsoever in the New Zealand litigation. There were evidentiary difficulties with this allegation, even leaving aside this significant omission.
The mother said that she could not recall the date of this incident. I consider it most surprising that she could not recall the date of an event which must have been utterly traumatic for her.
In her affidavit the mother said “I did not tell my dad about the gun incident”. In cross-examination, however, she said “I told my parents on the day it happened”. She said that neither of her parents filed an affidavit in the New Zealand proceedings.
The mother’s father, Mr Barnes, swore an affidavit in these proceedings on 24 February 2011. He made no reference whatsoever to this very serious alleged incident. The maternal grandmother provided no evidence at all in the mother’s case in Australia.
The father strongly denied that any such incident ever occurred. In his affidavit he stated “this allegation is a complete fabrication by the mother”.
The mother conceded that she did not approach the New Zealand police about this alleged incident. Further, she conceded that she did not tell her lawyer or the legal representative of D about this very serious matter.
It seems to me to be extraordinary that such a serious incident would rate no mention whatsoever in the proceedings in New Zealand. I have difficulty in reconciling this allegation with the mother’s consent to unsupervised time on 4 March 2009 and to an increase in D’s time with the father on 10 May 2010.
This allegation also sits uncomfortably with the various remarks and findings of their Honours Judges Whitehead and Fraser, to which I have referred above in these reasons. The allegation is inconsistent particularly with the mother’s apparent representation to Judge Fraser, on 4 March 2009, that she was of the view that there was no need for a final protection order. Similar observations can be made in respect of the mother’s other allegations of violence directed at her by the father.
The mother alleged that she was so afraid of the father and his associates that she was unable to leave her home between January and March 2010. She said nothing about this serious allegation in the New Zealand proceedings, notably in an affidavit which she swore on 24 March 2010. In cross-examination she conceded that she went out with friends to an establishment called “[…] Bar” between January and March 2010.
In her affidavit of 25 February 2011 the mother deposed that she “started to go out” in early April 2010 but that she “still felt very afraid of [the father] and felt that [I] could not safely go into public”. That evidence sits most uncomfortably with her admission in cross-examination that her jaw was fractured during an incident at … Bar in April 2010.
The mother alleged, in her affidavit of 25 February 2011, that the father smacked D on the face with sufficient force to leave a red mark which turned into a bruise. In that affidavit she said that the incident occurred when D was about six months old. In an affidavit sworn on 9 March 2011 the mother said that the incident occurred when he was “about 1 year and a few months old”. She annexed to her affidavit photos which she claimed to show “swelling, bruising and redness” on D’s face following “the assault by [the father] on [D]”. Coloured versions of these photos were tendered (exhibit 3) but I could detect no indication of such injuries.
The father denied that he “caused any mark to [D]’s cheek” and said: “I have never touched my son at all”. He gave this evidence firmly and persuasively.
The mother alleged that D returned from a period of time with the father in mid-2009 with two bruises on his legs. It is trite to observe that there could easily be an innocent explanation for bruises on the legs of a child who was a little over twelve months old at the time.
The mother alleged further that “on another occasion in about 2009” she saw a mark which she considered to be a cigarette burn on D’s hand when he returned from time with the father. In her affidavit of 25 February 2011 she said that a doctor told her that the mark was a burn, which appeared to have been caused by a cigarette. The mother adduced no evidence from this medical practitioner, nor did she obtain any relevant medical records.
These injuries to D allegedly inflicted by the father did not prevent the mother from consenting to orders for unsupervised and increased time in the New Zealand proceedings. In cross-examination she conceded “I would not agree to two out of three or three out of four weekends if I thought D was at any risk with the father”.

The mother’s father, Mr Barnes, deposed in his affidavit of 24 February 2011 that he saw “a burn mark” on D’s leg “in about mid-2009”. The mother said nothing about any “burn mark” on the child’s leg in these proceedings.
The mother relied on an affidavit of a general practitioner, Dr H, who purported to advise that she remain in Australia with D. Her report of 23 February 2011 was obviously based entirely on a history provided by the mother, which appeared to be of questionable reliability. For example Dr H reported that “her ex-partner is part of [a New Zealand gang] and threats have previously been made to harm her”. The father denied that he has any past or current gang affiliations. There was no independent evidence that the father has any association with criminal gangs in New Zealand.
Dr H reported that the mother “has experienced flashbacks consistent with post-traumatic stress disorder”. The mother said nothing about experiencing flashbacks in any of her affidavits filed in these proceedings.
Dr H reported that the mother “tried to commit suicide as the abuse was so violent and controlling”. In her affidavit of 25 February 2011 the mother said that she cut her wrist because she “felt so depressed that [she] was locked into such a violent relationship”. She did not say that she intended to end her life.
In summary, the mother’s conduct during the New Zealand litigation is significantly inconsistent with the allegations which she makes in these proceedings to the effect that the father is a danger to both herself and D. There is no evidence to corroborate her allegations, apart from an unconvincing affidavit from her father.
I doubt that the mother genuinely believes that she and/or D would be at risk from the father if they return to New Zealand. Such a belief would be inconsistent with her Facebook message to the father on 28 February 2011, when she informed him that her father was booking flights back to New Zealand and asked him to “drop the charges”. Such a belief would be inconsistent with the mother’s evidence “…in a way I would be prepared to go back. I miss my family in New Zealand”. The mother conceded that family support would be available to her if she and D return to their home country.
For these reasons I am not satisfied that D would be placed at grave risk of physical or psychological harm, or otherwise placed in an intolerable situation, if he returns to New Zealand. I am reinforced in this conclusion by the fact that the mother has twice had recourse to the New Zealand legal system and can thus be assumed to be fully aware of the remedies and protection available to her.
The mother gave no indication that she would refuse to return to New Zealand with D. On the contrary she conceded that she missed her family and, for that reason, would be prepared to return “in a way”. D would thus remain with his primary carer during and after his return to New Zealand.
For all of these reasons, I find that the mother has failed to establish any defence within Regulation 16 to the application for a return order. I find that there is no substance to her opposition to the application of the basis of the “rights of custody” submission. I will thus order the return of the child D to New Zealand.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 12 April 2011.

Associate:

Date: 12 April 2011

[2011] FamCA 335

12 April 2011

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