Director-General, Department of Child Safety & Milson
[2008] FamCA 872
•22 October 2008
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY & MILSON | [2008] FamCA 872 |
| FAMILY LAW - CHILDREN - HAGUE CONVENTION - Application for return of children to New Zealand - Alleged wrongful removal by mother in breach of father’s rights of custody under New Zealand law – Mother’s removal of children from New Zealand to Australia in breach of father’s right of custody to determine children’s place of residence – Consent – Mother failed to discharge onus that father consented to the removal or acquiesced in relation to it – Children’s objection to return – Mother established the children’s objection and that in relation to each child the objection showed a strength of feeling beyond the mere expression of a preference or ordinary wishes and that each had attained an age and degree of maturity at which it is appropriate to take into account his or her views – Discretion to refuse to make a return order enlivened – Discretion exercised to refuse to make a return order |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) Regs 16(1A), 16(3)(a)(ii), 16(3)(c) |
| AF v M B-F [2008] EWHC 272 (Fam) Zaffino v Zaffino (Abduction: Children’s Views) [2005] EWCA Civ 1012; [2006] 1 FLR 410 |
| APPLICANT: | Director-General, Department of Child Safety |
| RESPONDENT: | Ms Milson |
| FILE NUMBER: | BRC | 3266 | of | 2008 |
| DATE DELIVERED: | 22 October 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 22 May, 20 June and 4 August 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hamwood (22 May 2008) |
| SOLICITOR FOR THE APPLICANT: | Mr Parrott, C W Lohe, Crown Solicitor |
| RESPONDENT: | In person |
Order
The application by the Director-General, Department of Child Safety filed on 11 April 2008 for an order that the children J born … February 1995 and S born … April 1997 be returned to New Zealand is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Director-General, Department of Child Safety & Milson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 3266 of 2008
| DIRECTOR GENERAL, DEPARTMENT OF CHILD SAFETY |
Applicant
And
| MS MILSON |
Respondent
REASONS FOR JUDGMENT
Application
This is an application filed on 11 April 2008 by the Director-General, Department of Child Safety (the Central Authority) under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (the Regulations), made pursuant to the Hague Convention (the Convention), for an order pursuant to Reg 15 of the Regulations that the children J born in February 1995, 13 years, and S born in April 1997, 11 years, be returned to New Zealand.
Issues
Counsel for the Central Authority, and the respondent mother (the mother), who appeared in person, stated at the outset of the hearing that for the purpose of these proceedings it is common ground that:
·The children are under the age of 16 years (Reg 16(1A)(a)
·The children habitually resided in New Zealand, being a Convention country, immediately before the children’s removal to Australia (Reg 16(1A)(b)
·The children’s father (the father), being the person seeking the children’s return to New Zealand, had rights of custody in relation to them under New Zealand law, being the law of the country in which the children habitually resided immediately before their removal by the mother to Australia (Reg 16(1A)(c).
By way of explanation of the matter in the third bullet point above, the mother conceded that at the date of birth of each of the children she was living with the father of the children in a “de facto relationship” within the meaning of s 17(2)(b) of the Care of Children Act 2004 (New Zealand), as that term is defined in s 29A of the Interpretation Act 1999 (New Zealand), and that consequently pursuant to s 17(1) of the Care of Children Act 2004 (New Zealand) she and the children’s father were “joint guardians” of the children. Relevantly, in relation to the mother’s concession, s 15 of the Care of Children Act 2004 (New Zealand) provides that “guardianship” of a child means, in relation to the child, all duties, powers, rights and responsibilities that a parent of the child has in relation to the upbringing of the child; s 16(1) of that Act provides that those duties, powers, rights and responsibilities include (s 16(1)(c)) determining for the child “important matters affecting the child”; and s 16(2) of that Act provides that the “important matters” include (s 16(2)(b)) “changes to the child’s place of residence”. By s 97 of that Act, “rights of custody” is defined as including (s 97(b)) “the right to determine the child’s place of residence”.
Having regard to this analysis, the mother’s concession for the purpose of Reg 16(1A)(c) that the father had rights of custody in relation to the children under New Zealand law was a proper concession.
The effect of the matters as to which there is common ground is that the matters in issue raised by the parties for my determination are:
·Under Reg 16(1A)(d), whether the children’s removal to Australia was in breach of the father’s rights of custody
·Under Reg 16(1A)(e), whether at the time of the children’s removal the father was actually exercising the rights of custody, or would have exercised those rights if the children had not been removed
·Under Reg 16(3)(a)(ii), whether the father had consented or subsequently acquiesced in the children being removed to, or retained in, Australia
·Under Reg 16(3)(c), whether the children object to being returned, whether the objection shows a strength of feeling beyond the mere expression of a preference or ordinary wishes and whether the children have attained an age and a degree of maturity at which it is appropriate to take account of their views
·Under Reg 16(3), if the mother establishes one or more of the matters in Reg 16(3), whether the discretion to refuse to order the children’s return should be exercised
·Under Reg 16(5), if the mother establishes one or more of the matters under Reg 16(3), whether the residual discretion ought not be exercised in any event to order the return of the children to New Zealand.
The structure of the Regulations
Regulation 16(1) provides that if the Central Authority satisfies the Court that the children’s removal was wrongful the Court must, subject to Reg 16(3), order the children’s return.
Regulation 16(1A) provides that a removal is wrongful if each of the matters referred to in Reg 16(1A)(a) to (e) is established. The Central Authority carries the onus of proof in relation to the matters referred to in Reg 16(1A).
Regulation 16(3) provides a discretion pursuant to which the Court may refuse to order the return of the children if the mother establishes a matter in Reg 16(3), relevantly in this case Reg 16(3)(a)(ii) or Reg 16(3)(c). The mother carries the onus of proof in relation to those matters.
However, proof of a matter under Reg 16(3) does not have the effect that, without more, the Court will refuse to order the children’s return. The discretion in Reg 16(3) is “unconfined except in so far as the subject matter and the scope and purpose of the [Regulations] enable it to be said that a particular consideration is extraneous”. De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 661, per the majority.
Regulation 16(5) provides what is sometimes called “the residual discretion”, namely that the Court is not precluded from making an order for the children’s return only because a matter in Reg 16(3) is established by the mother.
Thus, Reg 16(5) makes clear that, even if the mother discharges the onus on her to prove (relevantly) one of the matters in Reg 16(3), it is open to the Court nonetheless to order the children’s return.
Relevant background facts
The father and the mother commenced a de facto relationship in or about 1992 or 1994, which continued “on and off”, according to the mother, for about nine years, that is, until about 2001 or 2003. The mother conceded that at the date of birth of each of the children she was living in a de facto relationship with the father, and conceded further that consequently she and the father are joint guardians of the children with the effect that he has rights of custody under New Zealand law.
It is common ground that the mother removed the children from New Zealand to Australia on 1 September 2007 and that the father did not, until 10 March 2008, sign an authority for the New Zealand Central Authority to initiate these proceedings.
On 11 April 2008, the Central Authority commenced these proceedings.
The father’s affidavit filed on 11 April 2008 (comprising an annexure to the Central Authority’s application) annexes two Court orders made in New Zealand for him to have access to the children. The first is dated 17 December 2004 relating to interim access. The second is a final order made on 1 June 2005 to the effect that he have access to the children on alternate weekends from 5pm on Friday until 5pm on Sunday and on special days as may be agreed.
Before the children’s removal, they lived with the mother and her husband Mr Milson in or near Wellington.
The father lives in L, New Zealand, near Wellington.
There is conflictual material as to the frequency with which the father exercised access pursuant to the orders before the removal.
The children presently live with the mother and her husband on the Sunshine Coast. As at 22 May 2008, the initial hearing date, they had done so for about nine months. The children, since the removal, have attended schools in the local Sunshine Coast area, J being currently in his first year in high school and S in year 5 in primary school.
Express limitation of the Central Authority’s case
Despite the existence of the access order made on 1 June 2005, Mr Hamwood of Counsel, who appeared for the Central Authority, made clear that for the purpose of Reg 16(1A)(d) and (e) it was not any part of the Central Authority’s case that the mother’s removal of the children from New Zealand to Australia on 1 September 2007 was in breach of the father’s rights of custody in relation to that (or any other) access order. Mr Hamwood emphasised during argument that the sole basis of the Central Authority’s case under Reg 16(1A)(d) and (e) relates to the father’s right of custody to determine the children’s place of residence.
The express limitation of the Central Authority’s case is not surprising, as it appears on much of the mother’s evidence (disputed by the father) that, despite the order made on 1 June 2005, the father saw little of the children, so that it may have been very difficult for the Central Authority to discharge the onus under Reg 16(1A)(e) that the father was “actually exercising” that specific right, or “would have exercised” that specific right if the children had not been removed.
However, it is not necessary to refer further to this aspect of the matter, because the Central Authority expressly disclaimed any reliance upon it.
Determination of the matters in issue
Regulation 16(1A)(d) and (e) - Was the mother’s removal of the children from New Zealand to Australia on 1 September 2007 in breach of the father’s rights of custody; and at the time of the removal was the father actually exercising the specific right of custody relied upon, or would he have exercised that right if the children had not been removed?
It is common ground, as between the mother and the father, that in February 2007 the mother proposed to the father that she and the children move from New Zealand to Australia “before the end of 2007”, and that the father, in February 2007, consented to the mother’s proposal. (I will deal below, in relation to Reg 16(3)(a)(ii), with the father’s case that his consent was not unequivocally given).
The authorities are clear, however, that “consent” does not fall to be considered under Reg 16(1A) but only under Reg 16(3).
The question which arises, therefore, is whether, as at 1 September 2007, the mother’s removal of the children from New Zealand to Australia was “wrongful”, within the meaning of the Regulations, without regard to the question whether the father consented to the removal.
In Director-General, Department of Child Safety and Stratford (2005) FLC 93-249, I was required to consider the relevance of alleged consent to a child’s removal in ascertaining whether there had been a breach of rights of custody within the meaning of Article 3 of the Convention, reflected in Reg 16(1A)(d). It is useful to set out that analysis:
18The Central Authority has the onus to establish that the removal or retention was a breach of the father’s rights of custody and thus wrongful.
19A question arose during the hearing as to the relevance of the alleged consent to the child’s removal in ascertaining whether there has been a breach of the father’s rights of custody, within the meaning of Article 3 of the Convention, reflected in reg 16(1A)(d).
20In In re P (A Child)(Abduction: Custody Rights) 2004 EWCA Civ 971; 2004 All ER (D) 520; 2005 Fam 293, the English Court of Appeal (in a Judgment of the Court comprising Ward, Scott Baker LJJ and Lawrence Collins J) recently held that consent does not fall to be considered for the purpose of establishing the wrongfulness of a removal or a breach of rights of custody:
22 For reasons we give later in this judgment, we have decided that consent does not fall to be considered for the purpose of establishing the wrongfulness of the removal or a breach of rights of custody pursuant to article 3 but only for the purpose of invoking an exercise of the court’s discretion pursuant to article 13. It is thus unnecessary to decide where the onus of proof lies if, contrary our views, consent is relevant under article 3. Our provisional view is that the claimant has to establish that he or she has rights of custody and that there is a prima facie breach. The burden would then shift to the defendant to establish consent. It would be wrong to require the claimant to prove a negative, the absence of consent, as a prerequisite to his entitlement to relief.
[bold emphasis added]
See also at pars 28-32, in which competing judicial views are set out, and in particular the conclusion of the English Court of Appeal at par 33:
33 We prefer the views expressed by that majority of opinion. If the giving of consent prior to the removal had the effect that the removal could never be classified as wrongful or in breach of the right of custody, then there would be no need for article 13 at all. Whereas acquiescence is expressly recognised to be acquiescence subsequent to the removal, consent is not so limited in article 13 and must, therefore, include permission which is given before the removal. If clear unequivocal and informed consent is given to the removal of a child, then it is difficult to see why the court should not exercise the discretion conferred by article 13 to permit the child to remain in the country to which it was agreed he or she should go. The policy of the Hague Convention is to protect children internationally from the harmful effects of their wrongful removal or retention. If a child is removed in prima facie breach of a right of custody, then it makes better sense to require the removing parent to justify the removal and establish that the removal was with consent rather than require the claimant, asserting the wrongfulness of the removal, to prove that he or she did not consent. Article 3 should govern the whole Hague Convention and article 13 should take its place as the exception to the general duty to secure the return of the child which is, after all, the basic principle of the Convention. …
[bold emphasis added]
21Where a treaty is incorporated as part of the local law, Australian courts will interpret that law in accordance with the international law governing the interpretation of treaties, as a matter of law and out of comity to ensure that the interpretation of international treaties by Australian courts will, so far as possible, conform to the approach which will be taken by the courts of other countries in relation to the same treaty. See, eg, De L v Director-General, New South Wales Department of Community Services (1996) 187 CLR 640 at 675 per Kirby J.
22Thus, it is appropriate that I apply the construction of Articles 3 and 13 determined in In re P, which I propose to do.
23In Regino and Regino (1995) FLC 92-587 Lindenmayer J determined that a father had consented to a removal and retention and that accordingly there was no breach. In that case the Central Authority had conceded that if there had been consent there would be no wrongfulness. See at 81,813. However, at 81,818-9 Lindenmayer J expressed doubt as to the correctness of the concession.
24Although the English Court of Appeal in In re P stated plainly that consent does not fall to be considered for the purpose of establishing wrongfulness, nonetheless it is necessary to consider what the English Court of Appeal meant by the expression prima facie breach in In re P.
25Mr Green of Counsel, for the Central Authority, submitted that “having regard to recent case law on the way in which consent is treated, the father’s assertion is sufficient evidence for the Court to find a prima facie breach, citing In re P at par 22; and that a prima facie breach is shown by the mere assertion by the father that the removal was without his consent.
26Mr Westbrook of Counsel, for the mother, did not oppose Mr Green’s submission that the establishment of a prima facie breach (breach under reg 16(1A)(d) being the only reg 16(1A) element in issue in the case) led then to the Court considering the issue of consent under reg 16(3)(a)(ii), and that the mere assertion by the father that his consent had not been given to the removal would be sufficient to raise a prima facie case of breach. Mr Westbrook submitted however that this step, properly characterised, would be an “intermediary step”. He submitted that if the Court then should determine under reg 16(3)(a)(ii) that the removal was with the father’s consent, the Court should revisit reg 16(1A)(d) to make an actual finding that there was no breach; with the effect that the Court then could not find that the removal was wrongful so as to enliven the residual discretion under reg 16(5).
27Mr Green of Counsel opposed the proposition of there being any “intermediary step”, submitting to the effect that the subparagraphs of reg 16 were intended to be applied in the order in which they appear, so that, once the five elements in reg 16(1A) are established, there are no “reverse gears”, and the Court must go on to consider, in turn, any issues raised under reg 16(3); and then (if relevant) the exercise of the residual discretion under reg 16(5), without at any stage revisiting reg 16(1A).
28I accept Mr Green’s submission that there are “no reverse gears”, once the matters under reg 16(1A) are established, so that Mr Westbrook’s “intermediary step” proposition is in my view wrong. However, that proposition in itself seems premised upon the erroneous proposition put by Mr Green that consent falls to be considered under reg 16(1A)(d).
29I will now explain my reasons for rejecting Counsels’ carefully considered views.
30It is axiomatic that a party does not aver and ought not aver to that which he or she does not have to prove.
31Consent is not referred to in Article 3 (reg 16(1A)), and thus is not one of the elements or formalities of a Hague Convention case upon which the Central Authority carries the onus.
32Thus, it is irrelevant, and ought not be pleaded or the subject of evidence in any Central Authority’s case under Article 3 (reg 16(1A)) that a removal was with or without consent. It is up to a respondent to plead and adduce evidence on that issue. It would then be a matter for the Central Authority, if it wished, to adduce evidence in response in respect of that issue.
33Further, Article 3 and reg 16(1A)(d) do not speak of any prima facie breach of rights of custody, but rather a removal or retention being in breach of those rights. The Convention contemplates that a removal is “wrongful”, per se, by the application of Article 3, which provides that the removal or retention will be “considered wrongful” if the elements in Article 3 are established; so that, by Article 12 (reflected in reg 15) the child must be returned, subject only to Article 13 (reflected in reg 16(3)), which vests the discretion not to return the child.
34It is instructive, in this regard, to set out (so far as relevant) Articles 3, 5, 12 and 13 of the Convention:
Article 3
The removal or retention of a child is to be considered wrongful where –
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Article 5
For the purposes of this Convention –
(a) ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
(b) ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 … the authority concerned shall order the return of the child forthwith.
Article 13
Notwithstanding the provisions of the preceding article the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or…
[bold emphasis added]
35It is difficult to perceive within the scope of Article 3 any concept of a prima facie breach of rights of custody. Rather, it seems to me that Article 3 contemplates that a removal or retention will be in breach of rights of custody if, for example, it be established simply that the removal, or retention, is contrary to or interferes with rights of custody, as defined in Article 5. Thus, if it be established that any removal, or retention, was contrary to or interfered with existing rights of custody (as defined in Article 5) the removal, or retention, will be characterised as wrongful. Plainly enough, there would not be wrongfulness if the party removing, or retaining, the child had sought and obtained in the place of habitual residence an order to relocate with the child. This is because, if such an order be made, the rights of custody would be altered according to the content of the order so that, provided the removal, or retention, conformed with the order, there would be no breach.
36Once it is established however that there is a wrongful removal, or retention, in this sense, the person who committed the wrongful act has the opportunity to invoke Article 13 (notwithstanding Article 12) not to have to return the child.
37On this analysis, the English Court of Appeal can only have meant, I think, that once it is established that a removal, or retention, was contrary to or interferes with rights of custody, that will be sufficient to find that the removal, or retention, was in breach of those rights. There is I think no other interpretation of what may have been meant, which is consistent with Article 3, nor the Convention read as a whole; and consistent also with that Court’s determination that consent does not fall to be considered for the purpose of establishing wrongfulness (par 22) as otherwise there would be no need for Article 13 at all (par 33).
38In this regard, in my view it is inappropriate to characterise the discharge of the onus under Article 13 (reg 16(3)) as in any sense a “justification” of the act which is “considered wrongful” in that the discharge of the onus would then have the effect that the act ceases to be wrongful. It does not. It remains wrongful. It is just that, if the onus is discharged, and if the child is not returned, that is the result of the exercise of a discretion, not a right flowing from a justification.
39This analysis is consistent with the approach that the matters in Article 3 are regarded as “formalities” (although an onus attaches to them) as constituting the fundamental prerequisites for a competent application by a Central Authority. By way of analogy, reg 16(1A)(e) also reflects (in part) par (a) of Article 13. For the purpose of presenting a competent application it would simply need to be averred and sworn that at the time of a child’s removal, or retention, there was actual exercise of the rights of custody or that they would have been exercised if the child had not been removed or retained, without more, unless the respondent raised the issue under reg 16(3)(a)(i), and assumed thus the onus of proof on the matter. It would then be a matter for the Central Authority, if it wished, to adduce evidence in response in respect of that issue.
Applying these principles, especially those in In re P at pars 22 and 33, it is clear that the mother’s removal of the children from New Zealand to Australia on 1 September 2007 was “wrongful” (“considered wrongful”) as being “in breach” of the father’s right of custody to determine the children’s place of residence, because the mother’s removal was contrary to, or interfered with, his ability to exercise that right. Further, having regard to the matter of common ground that as at February 2007 the mother proposed and the father consented to the children’s removal (I will deal below with the nature of that consent, as to whether it was equivocal or not equivocal), it is clear that as at February 2007 he was “actually exercising” that right of custody and, by inference, continued to exercise it up and until 1 September 2007 so that also he “would have exercised” that right if the children had not been removed on that date.
I am constrained, by the matters to which I have referred, to conclude that the mother’s removal was “wrongful” (“considered wrongful”) within the meaning of the Regulations.
The result is that, pursuant to Reg 16(1), I must order the children’s return to New Zealand, unless the mother establishes one of the matters in Reg 16(3), and, in consequence, I exercise the discretion under that provision not to order the children’s return.
Regulation 16(3)(a)(ii) – Did the father consent to the removal, or subsequently acquiesce in relation to it?
Consent
I have referred already to the circumstance that it is common ground, as between the mother and the father, that in February 2007 the mother proposed to the father that she and the children move from New Zealand to Australia “before the end of 2007”, and that the father, in February 2007, consented to the mother’s proposal; and common ground also that the mother removed the children from New Zealand to Australia on 1 September 2007.
In In re P at par 33 (set out in the Stratford extract above) reference is made to the giving of “clear unequivocal and informed” consent to the removal of a child in the context that, if this is shown, it would be difficult to see why a court should not exercise the discretion to permit the child to remain in the country to which it was “agreed” he or she should go. Other formulations include similar expressions such as “real, positive and unequivocal” consent, and evidence as to consent which is “clear and compelling”. See, eg, M v M [2005] NZFLR 67, at pars 15-17 per Somerville J.
As I observed in Stratford (above) at par 48, I do not understand these phrases to mean that the standard of proof is other than the civil standard (see, eg, M v M (above) at par 23), but rather to refer to the quality of the evidence requisite to meet that standard.
The mother’s case is that in February 2007 the father consented to her removal of the children to Australia “before the end of 2007”, and that no conditions were attached to his consent so that it was “clear unequivocal and informed”.
The Central Authority’s case is that, at the time of the father’s consent in February 2007, both he and the mother had plans to leave New Zealand, the mother to live in Australia, and he to live in Germany, so that, in this context, his intent was that his consent, at the time he gave it, was not “clear, real, positive and unequivocal” but conditioned upon the fruition of his plan to move to Germany, and further, that by necessary implication the mother, in the context in which the consent was given, ought to have understood that his consent was so conditioned. His case is that by a text message, which he believes he sent to the mother soon after February 2007, he communicated to her that he would not be moving to Germany. Thus, on his case, the mother ought to have understood that the condition underlying his consent had not eventuated and it was thus inoperative. Thus, it was put on his behalf that as at 1 September 2007, the date of the removal, there was no real or operative consent by him for the mother to remove the children to Australia. In short, the case put by the Central Authority was that his consent in February 2007 was a qualified or conditional consent “premised upon both parties leaving New Zealand”.
There was thus conflict in the Central Authority’s and the mother’s cases, requiring close attention to the affidavit evidence presented by each of the mother and the father, and, as will be seen, in this particular case, requiring determination on the papers as to whether the mother discharged the onus upon her of proving the father’s consent.
I will turn now to the authorities as to the approach I am required to take in relation to this matter, with particular regard to the recent decision of the High Court of Australia in MW and Director-General of the Department of Community Services [2008] HCA 12, 28 March 2008. In that case, the majority (Gummow, Heydon and Crennan JJ) at [36]-[50] made powerful observation as to the task of a judge in determining matters arising under the Convention involving disputed matters of fact. In particular, their Honours said that although the Family Court of Australia, in Hague Convention matters, is required to act promptly “Nevertheless, prompt decision making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another”. See at [49]. Their Honours said that although in some past cases the despatch of Hague Convention matters has been described as a “summary procedure”, or to be dealt with “in a summary manner”, such references are “apt to mislead”, and cautioned against “inadequate, albeit prompt, disposition of return applications”. See also at [49]. Specifically, their Honours said that, if necessary, even “at the initiative of the Family Court itself”, proceedings may be required to be adjourned for the “prompt provision of more adequate affidavit evidence”: [44]; and that although cross-examination in interlocutory applications generally is not to be encouraged, an application under Reg 16 is a “special type of proceeding” which is “apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country”: [44]; [46]. Their Honours were critical of any “textual analysis” of affidavit material, at first instance, in cases where adjournment of a matter may allow the provision of more adequate affidavit material, or cross-examination: [44].
During argument, I raised the question whether the effect of the majority decision in MW is to change the landscape of first instance Convention proceedings from the traditional tenor of “summary quick despatch” to meet an intended time line of despatch, in favour of the first instance judge being required, even upon his or her own initiative, to require adjournment to allow opportunity to adduce necessary evidence to determine matters at issue properly, even at the sacrifice of meeting the intended “quick despatch” Convention time line.
In this particular case, there was difficulty on the hearing date because the Central Authority, after discussion in relation to MW, sought an adjournment, limited to affording it an opportunity to seek to place into evidence, if it be available, the precise text of the text message which the father said he believes he had sent to the mother, the substance of which, in the Central Authority’s case, may prove to have rendered the qualified or conditioned consent inoperative.
On the hearing date, I refused the Central Authority’s application for an adjournment and ordered instead that it may file an affidavit as to the text of the text message relied upon by the father, if such extant text should be available. In my view, this was the proper course because, already, the Central Authority had had full opportunity to file an affidavit by the father contesting the mother’s case of alleged consent, and indeed had filed by leave on the hearing date, 22 May 2008, an affidavit by the father in response to the mother’s affidavit raising the matter of his alleged consent. Thus, the orders which I made on 22 May 2008 were:
1The Director-General’s application for an adjournment of the matter, in order to put into evidence (if it may be available) the text of the text message (if any) referred to in paragraph 4 of the father’s affidavit filed by leave, is dismissed.
2The proper officer of the Department of Child Safety file and serve an affidavit by 12 noon on Monday 26 May 2008 either setting out the text of the text message (if any) referred to in paragraph 4 of the father’s affidavit filed by leave today, or stating that there is no such extant text.
3If that affidavit states that there is no such extant text, there be no further listing of the matter before judgment.
4If that affidavit sets out the text of the text message (if any) the matter be listed for further submissions at 9.30am on Tuesday 27 May 2008, at which hearing all parties may appear by telephone.
In the events which transpired, the father subsequently provided an affidavit, filed on 26 May 2008, stating that:
·he was not able to produce a copy of the text message
·he could not be more specific about “what I said in the text” other than as stated in his earlier affidavit and
·he could not “confirm” precisely when the text had been sent “but I think it would have been a matter of weeks only after the February 2007 conversation”.
At the hearing, neither the Central Authority, nor the mother, sought to cross-examine each other’s deponents and indeed, expressly refused invited opportunity by me to do so. Thus, the matter of whether the father’s consent was equivocal, or unequivocal, falls to be determined by me on the papers, bearing in mind that the mother carries the onus of proof on the consent issue.
In Panayotides and Panayotides (1997) FLC 92-733 at 83,897 the Full Court of the Family Court of Australia (by implication) approved the following approach, where there is conflict in the evidence in Convention proceedings, and where usually issues must be determined on the papers, namely that it is appropriate (1) to look at the versions of each party; (2) to find the common ground; (3) to note the areas of conflict; (4) to look to the inherent probabilities; and (5) concerning the intent of the parties, where this is a matter of some conjecture, to look at the conduct of the parties and to any documentary or corroborative evidence which may help to determine that issue.
In In reP (A Child) (Abduction: Custody Rights) (2004) EWCA Civ 971; 2004 All ER (D) 520; 2005 Fam 293, the English Court of Appeal said, as to the proper approach in resolving disputed matters of fact in Convention matters:
20 The law is well settled. In In reF (A Minor) (Child Abduction) [1992] 1 FLR 548, 553-554 Butler-Sloss LJ said:
If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case. (emphasis added)
In In reF (A Minor) (Child Abduction): (Custody Rights Abroad) [1995] Fam 224, 232 she added:
Admission of oral evidence in Convention cases should be allowed sparingly. If the issues between the parties cannot be resolved on affidavit the article 13(b) criteria will not have been established. The child is returned pursuant to article 12 and it will be for the court of habitual residence to determine the disputed issues with the opportunity to hear oral evidence and the parties cross-examined. (emphasis added)
In Stratford (above) I said, after referring to these passages in In re P:
49Thus, where there is disputed non-oral evidence, any “extraneous independent evidence” must be more than persuasive, and indeed, be compelling, to reject a deponent’s sworn testimony, such that, where there are “no grounds for rejecting the written evidence on either side”, the party carrying the onus will have failed to establish his or her case. Re F (A Minor) (Child Abduction) [1992] 1 FLR 458 at 553-4 per Butler-Sloss LJ, cited in In re P, at par 20, set out above.
It is within the framework of these principles that I must now consider the mother’s and the father’s sworn testimony on the consent issue.
The father said in his affidavit filed on 11 April 2008 (filed with the Central Authority’s application), pars 19-22:
19. In December 2007 I received a telephone call from a representative of the Inland Revenue Department in Australia. He informed me that payment of child support was now being administered by the Child Support Agency in Australia. This was, he said, because the children were now living in Australia, and, he said, I was now liable to make payments via the IRD in Australia. At the time, IRD in New Zealand was continuing to deduct child support payments from my wages.
20. I was stunned to be informed that the children were now living in Australia, because I had not known, to that point, that they had even left New Zealand.
…
22. I have absolutely no idea where the children are. I have received no communication at all from [the mother]. I am very upset the children have been taken away from New Zealand without my knowledge and consent; and effectively making it impossible for me to have ongoing regular contact with them. (emphasis added)
Thus, by par 22 of that affidavit, the father raised that the children had been removed by the mother from New Zealand to Australia without his consent.
The mother said, in her affidavit filed on 16 May 2008 (first attachment), pars 1-6:
1. The last time I spoke to [the father] was in February 2007. [The father] came to the house at […], Wellington, New Zealand.
2. My son [K] (21 yr old), my husband [Mr Milson], [J], [S] and I were all on the driveway talking to [the father].
3. I said to [the father] that we were moving to Australia before the end of 2007. [The father] replied by saying that was fine as he was moving to Germany in Jan/Feb 2008. [The father] said that he had been changing his New Zealand money into Germany currency and that he had quite a bit saved. [The father] said that he was going to meet up with his brother […] and they would live in Canada together.
4. [The father] said that he had already contacted IRD to tell them his plans about living overseas and that IRD had a system for collecting maintenance payments in Germany & Canada.
5. [The father] said all of this in the company of [Mr Milson], [K], [J] and [S] and myself. I did ask him to write it down but he was in a hurry and he assured me that it wasn’t a problem as he was moving to Germany soon.
6. That was the last time I had contact with [the father]. (emphasis added)
The mother’s evidence is corroborated by her son K, in his affidavit also filed on 16 May 2008:
…[The father] claimed he didn’t know about the children going to Australia – this is so far from the truth as I was standing in the driveway of our home when Mum and [mr Milson] discussed the idea with [the father]. The response from [the father] was that this was cool as he himself was planning to move to Germany or Canada for work. (emphasis added)
In response to the mother’s affidavit filed on 16 May 2008, the Central Authority relied on the father’s affidavit filed by leave on 22 May 2008, pars 2-4:
2.[The mother] (formerly known as Ms […]) refers to a conversation she says we had in February 2007. She says that she then told me she was intending to move to Australia before the end of 2007, and I replied by saying that was fine, as I was intending to move to Germany in January/February 2008. That is correct.
3.At that time, I had indeed intended to shift to Germany, with my then partner, […]. Subsequently we separated, and so my plan to move to Germany no longer applied.
4.I believe I told [the mother] this, by text (since that was the main means by which we communicated). (emphasis added)
The mother, in response to the father’s affidavit filed by leave on 22 May 2008, relied on her affidavit also filed by leave on 22 May 2008, pars 8-10:
8.I refer to [the father’s’ second affidavit paragraph 3. [The father] states that his partner & him had split in 2007 & that’s why he was no longer going to Germany.
9.[The father and his partner] separated in 2006, months before [the father] & I had the conversation about moving to Australia which we had in February 2007.
10.I refer to paragraph 4 second affidavit where [the father] states that he sent me a text to tell me he wasn’t going. The only text I received from [the father] after our conversation in February 2007 was him stating that [the mother’s husband] could adopt [J] and [S] as long as I stop all maintenance payments. (emphasis added)
I have mentioned already that I allowed the Central Authority the opportunity to place into evidence, if it existed, the text of the text message which the father said he “believes” he sent to the mother, and that in response the father subsequently provided an affidavit filed on 26 May 2008, the contents of which I have already mentioned.
In my view however, on reflection, it is not to the point to determine whether the father may or may not have made any subsequent text communication to the mother, as he claims, but rather, by reference to the father’s and the mother’s affidavit material (there not having been any cross-examination) to determine, in the first place, on the papers, whether the mother has discharged the onus of proving that the father’s consent given in February 2007 was clear and unequivocal.
The Shorter Oxford Dictionary provides that “equivocal” includes the meanings “ambiguous” and “of uncertain nature”.
There is a distinction, on the one hand, between consent unequivocally stated but coupled with a stated reason for the consent, and, on the other hand, the statement of consent itself being equivocally expressed, meaning the expression of consent but with a stated qualification. In the first case, there is no ambiguity. In the second case, there is express equivocation. There is a third possibility, namely that there is such ambiguity in the expression of the consent so as not to admit necessarily of either of the first or the second cases.
There are thus three possible conclusions for me to draw, having regard to the father’s and the mother’s evidence:
·The father’s consent was unequivocally stated, but at the same time he gave his reason for that consent
·The father’s consent was not unequivocally stated because, upon proper analysis, by necessary implication based upon its context, he intended his consent to be conditioned
·The father’s statement of consent, in its context, was so unclear as to admit of ambiguity so that clear choice between the first two possibilities is not open.
Having very closely considered the father’s and the mother’s evidence (as set out above) I am obliged to conclude that the father’s statement of consent, even on the mother’s evidence, falls into the third category, that is, the category of ambiguity.
It follows that, in my view of the evidence, the mother has not discharged the onus upon her of proving that the father’s consent was real, positive, clear and unequivocal, so that her case under Reg 16(3)(a)(ii) based upon consent must fail.
There are many inconsistencies in the father’s affidavit material, to which the mother drew attention in both her affidavit material and submissions, which may have caused me to conclude, if I had needed to consider it, that the father’s evidence is so unreliable that I am entitled to reject it. However, as I have determined the matter of consent against the mother on her own material, it is not necessary for me to determine the matter on disputed non oral evidence, nor to determine whether there is compelling independent extraneous evidence in support of one side.
Acquiescence
The mother’s alternative case under Reg 16(3)(a)(ii) is that the father “subsequently acquiesced” in relation to her removal of the children to Australia. She argued that, between the date of the removal 1 September 2007, and the date of his signed authority, 10 March 2008, the father was inert.
The Central Authority, however, argued that the father did not know until December 2007 that the mother had removed the children from New Zealand to Australia (see the father’s affidavit filed on 11 April 2008, pars 19 and 20, set out above); and that between December 2007 and March 2008 he acted promptly to cause the current application for the children’s return to New Zealand. In relation to the first period, 1 September 2007 to December 2007, the father relies upon a letter dated 20 December 2007 from Inland Revenue, New Zealand, to the father, which referred to a request to it from the Child Support Agency in Australia to collect child maintenance from him for the children.
The period 1 September 2007 to 10 March 2008 is about six months and ten days. It is appropriate however discretely to consider the periods 1 September 2007 to December 2007, when the father says he first learned of the removal, and the period December 2007 to 10 March 2008.
In fairness to the father, it ought be observed that in respect of this latter period, although he did not sign the authority until 10 March 2008, it may be likely, and reasonably may be inferred, that in that period he may have been taking necessary steps which led then to the signing of the authority.
Closer examination however needs to be made as to the period between 1 September 2007 and December 2007.
The father has sworn that before 1 September 2007 he was seeing the children every second weekend, pursuant to the access order made on 1 June 2005, to which I have referred earlier. Without determining, on the evidence, whether this may be true or false, the father’s contention that he did not know until December 2007 that the mother had removed the children from New Zealand to Australia is somewhat extraordinary if, as the father contends, he regularly exercised access under the 1 June 2005 order until 1 September 2007, particularly as, as is common ground, he lived in Wellington about ten or fifteen minutes driving time from where the children lived.
The father’s explanation however is that he thought after 1 September 2007 that the mother and the children were living elsewhere in New Zealand, perhaps Auckland, for reasons given in his affidavit material. Nonetheless, there is no evidence of any effort on the father’s part between 1 September 2007 and December 2007 to ascertain where the mother and the children were living.
The mother seeks that the inference be drawn that the father knew of the removal, acquiesced in it, and was prepared to continue his acquiescence as long as he did not have to pay child support. To support the inference she relies heavily upon the many text messages sent to her by the father, detailed in her affidavit material, proposing that he would not continue to seek the return of the children as long as she waived his past and current maintenance obligations. Whilst the inference is available, I am not able to draw it for the reason that the father’s proposal is equally consistent with the possibility that the father genuinely did not know of the children’s removal to Australia until December 2007. Further, as I have observed already, it may be likely that between December 2007 and 10 March 2008 he may have been taking necessary steps leading to the signing of the authority.
It follows that, in my view of the evidence, the mother has not discharged the onus upon her of proving acquiescence, so that her case under Reg 16(3)(a)(ii) based upon acquiescence also must fail.
Regulation 16(3)(c) – Do the children object to being returned and if so do their respective objections meet the criteria to invite exercise of the discretion to refuse to make an order for their return?
Regulation 16(3)(c) provides:
(3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
…
(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
... .
The evidence as it stood before 20 June 2008
The mother said in her affidavit filed on 16 May 2008 (first attachment), pars 10 and 11:
10.I strongly oppose this application as we have been living in Australia for 9 months. [J] started High School this year and is really happy at school. He has some lovely friends and is playing rugby union, rugby league and he is learning the drums. [J] has always been quite shy and reserved but since being in Australia he is a lot more positive and has been even in a lead role in Drama through the school. I have attended [J’s] first parent teacher interview and they are very impressed with the way he is settling into High School.
11.[S] is in year 6 and she is doing very well at school. I have attended several parent teacher interviews and the teachers have commented on how well she has progressed in the last 9 months. She has been involved in nippers surf life saving, dancing, netball and learning to play guitar. [S] has a great group of girls that she plays with. [S] loves swimming and we often take her to the beach as the salt water is great at clearing up [S’s] eczema which was really bad in New Zealand. She used to get teased about it but now she has confidence.
The mother’s sister, who lives in New Zealand, said in her affidavit filed on 16 May 2008 (no paragraph numbers):
…
My sister has been the primary caregiver to her children even more so since their parents [the mother] and [the father] split four years ago, due to the final straw of the two children witnessing their father assaulting their mother. I believe this is part of the reason why [J] doesn’t want any thing to do with [the father] and also the fact that [the father] has not wanted anything to do with his children since the split.
… From this date on [J] kept voicing that he did not want any further contact with his father. …
Ms W, a friend of the mother, who lives in New Zealand, said in her affidavit filed on 16 May 2008 (no paragraph numbers):
…
In the past two years that I have known [J] and [S] they have not had any contact with [the father].
Both children are very settled in Australia and both have said to me that they do not want to return to New Zealand. (emphasis added)
Mr H, who lives in New Zealand, said in a declaration filed by leave on 22 May 2008 (by consent of the Central Authority to be treated as an affidavit) that he has known the mother’s husband Mr Milson for many years and (no paragraph numbers):
…
… I believe that [J] and [S] are genuinely happy, as are [the mother’s husband] and [the mother] in raising them. Why I know this – because last time I was with them they were calling [the mother’s husband] “Dad”. They have established further friends and school stability where they live and would find it detrimental, financially and mentally if they had to relocate. Let the children choose to re-establish contact with their biological father later in life if they wish. Don’t force them into something they obviously are against at this time of their life, it may have dire consequences.
The mother said, in her affidavit filed by leave on 22 May 2008, par 18:
18.… The children are happy in Australia and they want to stay here. (emphasis added)
Orders 20 June 2008
Based upon these evidentiary matters, I relisted the matter on 20 June 2008, and on that date, for the reasons then given, I ordered, in the following terms, that a report be prepared by a family consultant in relation to the matters set out in Reg 16(3)(c):
1Pursuant to Regulation 26 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) a family consultant be nominated by the Manager Child Dispute Services to prepare and submit a report as to:
(a)whether the children [J] born […] February 1995 and [S] born […] April 1997 object to being returned to New Zealand; (emphasis added)
(b)whether the objection shows a strength of feeling beyond the mere expression of a preference or ordinary wishes; and
(c)whether the children have attained an age and a degree of maturity at which it is appropriate to take account of their views.
2The mother ensure that the children attend upon the report writer at the times advised to her by Child Dispute Services.
3The Central Authority, if it wishes, may file and serve material in relation to this subject matter no later than 4pm on Monday 28 July 2008.
4The matter be further listed at 10am on Monday 4 August 2008 for submissions in relation to the mother’s case under Reg 16(3)(c), having regard to the evidence on this subject matter and the report when available.
The report
The report prepared by Mr P, family consultant, dated 7 July 2008, annexed to his affidavit filed on 4 August 2008, at pars 1-10 referred to background matters and Mr P’s interviews with the mother, the father and the children on 1 and 2 July 2008 (the father in New Zealand by telephone). Paragraphs 11-21 dealt with Mr P’s interviews with the children; pars 22-28 dealt specifically with the matters in Reg 16(3)(c); pars 29-32 dealt with Mr P’s evaluation of the children, including observation as to some welfare matters; and the report concluded with pars 33-34, containing Mr P’s recommendations. It is necessary, for context, to set out the following parts of the report, dealing specifically with the children. Although the report was directed chiefly to the Reg 16(3) matters, it is appropriate to include the paragraphs which relate to the welfare matters (pars 29-32):
THE CHILDREN
The cognitive and emotional development of the children.
[S]
11. [S] volunteered to be interviewed first ahead of her brother. She presented as a quiet, reserved 11-year-old girl who was appropriately a little guarded and shy but was easy to engage. There was no evidence of anxiety or mood problems. Her speech and language were age appropriate in both expressive and receptive areas. Her comprehension skills appear normal and she confidently asked for clarification of questions when she did not understand them. She reports feeling happy and denied any major worries but later told me she wished “All this court stuff was over”.
12. [S] is in Grade 6 at […] State School. She reported having many “Nice” friends and denied any negative experiences at her school. [S] feels her best attribute is that she is a good friend and she is good at swimming. She enjoys sport in general. She gets along well with her current teacher and her favourite subject is Art. She told me she likes her current school “More than my old NZ one because it was really little and I hardly had any friends and there was no where to run around”. She told me her interests are computer games, animals, and swimming.
13. [S’s] view on why her family moved to Australia is “Because we thought it would be fun to get out and go somewhere”. Asked what she thought of the actual move away from her father she replied “I was fine about it”.
14.[S] remembers when her parents were together and recalls them “Arguing lots”. She told me it was “Really scary” to hear the fighting and mentioned an incident where she said “They were pushing each other and I was shivering and couldn’t do anything”.
15.[S] told me she has not heard from her father for “a long time” but thinks about him “Lots of times”. She said she sometimes text messages him but he “Doesn’t return them”. Asked to think about what her father might be thinking about she and [J] living in Australia [S] said “I actually think he doesn’t care about me”. I was struck by [S’s] affect as we discussed this topic. I did not sense she was upset but rather confused and disappointed. Underpinning these emotions is her clear ambivalence and mixed feelings towards her father.
16.[S] expressed a clear preference to remain in Australia and when asked told me she does “Not want to go back to NZ”. She stated as her reasons for not wanting to return to New Zealand as “I think I’m happier here. I love being able to go swimming all the time and I like my friends”.
17. [S] told me she misses her cousins, her old friends, and her Aunties in New Zealand. When I asked if she misses her father she said “Oh yeh him too I miss him too”.
[J]
18.[J] is a 13-year-old boy in Grade 8 at […] High School in [the Sunshine Coast]. He presented as a thoughtful, emotionally sensitive young person. Like his sister he was initially reserved but this was entirely appropriate given the context. [J] was happy to talk with me and showed good insight into why I had asked to see him. He said “You need to know about what we think about going back to New Zealand”. No problems were noted in [J’s] expressive language and he appeared to comprehend and follow the content of our discussion quite well. He denied having any fears or worries. There was a quality to [J’s] presentation that made me think he lacks self-confidence.
19.[J] feels he is “Going ok” at school and reported having good friends as the best thing about school. His favourite subject is Drama and he is highly involved in sporting activities. His interests outside of school include going to the beach, skateboarding, “Going to movies with Mum and Dad and [S]”, playing computer games, and rugby.
20. [J] became visibly nervous when I asked about his memories of his parents’ relationship. He stated “We used to go out together and do some stuff that was fun but I try to forget the bad things”. His presentation was congruent with his thought content. This was clearly a difficult topic for [J] to talk about. [J] informed me he had “Kind of forgotten” the last time his father had spoken to him but thinks it was “About 1 or 2 years ago”. I felt this comment further reflected [J’s] attempts to “defend” against what is probably a feeling of being rejected by his father. He told me he thinks his father “Does not want to be a part of our (His and [S]) lives or else he would contact us”.
21. [J] spoke of wishing to remain in Australia saying he feels settled at school and likes his current group of friends. Asked to say why he does not want to return to New Zealand he said “Because [the father’s] there. He might find us and come there and start a fight with Mum again”. Throughout the interview [J] referred to his father as “[father’s Christian name]”. When children refer to a parent by their Christian name it can be indicative of the child’s desire or need to distance them self from the parent or to depersonalise the parent as a way of protecting them self from that parent at an emotional level.
The views of the children as to whether:
i) The child objects to returning to New Zealand;
22. Both children articulated objections to returning to New Zealand. They both expressed that they feel settled, more safe and happy since moving to Australia and each have reservations about returning to New Zealand.
ii) The reasons for those objections;
23. [S] is clearly ambivalent and in two minds about objecting to returning to New Zealand. I am unsure if it is fair to say she is ambivalent about where she actually resides as I got the sense her ambivalence relates more to her desire not to hurt either one of her parents. This is a difficult dilemma for her at her age as she understands her parents want different things and she is in the middle not wanting to disappoint either party. Consistent with her developmental phase she is trying to divide her loyalties up in a way that will serve this function but may lack the cognitive sophistication to fully cope with this. [S] does, in my opinion, have a strong desire not to return to New Zealand and this is based on factors that one would expect from a child of her age (eg. Peer relations, personal gratification). As well as these more “immediate” reasons [S’s] objection is without doubt related in part at least, to her concern that the relocation would mean more family conflict, which given her age is a reasonable deduction.
24. [J] is much clearer in his objections to returning to New Zealand. His comments conveyed a strongly held position in this regard, one that is primarily based on two factors: His successful adjustment to living in Australia (Schooling and peers) and his apprehension that returning to New Zealand will mean a re-exposure to his father’s volatile ways.
iii) The children’s objection show a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
25. In the case of [S] it is difficult to dismiss the possibility that her objection to returning to New Zealand may merely be a wish for as I say she is without doubt experiencing strong ambivalence and is struggling to resolve her conflicted loyalties to each of her parents. She is also at an age where she may still be “holding” some of the thought at a fantasy level and therefore hoping that by not expressing an absolute position she is leaving an opening for the possibility that she can “please all parties”. This aside, I am of the opinion that after considering what she expressed to me together with her presenting affect and demeanour, that [S’s] objection to returning to New Zealand is both of her own making and beyond an expression of a preference.
26. In the case of [J] I am far more confident that his objection demonstrates a strong opposition to returning to New Zealand. I base this on the combination of his affective responses during interview, his thought content, and the consistency in his remarks.
iv) The children have attained an age and a degree of maturity, at which it is appropriate to take account of their views;
27.[S] presents as being an emotionally intelligent, mature child. Her comments to me reflected her concern for the feelings of others in her life. This together with the consistency, coherency, and organisation of her responses gave me the impression she has thought through what she told me in the interview. I conclude that [S’s] opinions are her own and that she demonstrates a level of maturity that would make it appropriate for the Court to take account of her views.
28.[J] presents as a thoughtful child who is mindful of the matter and issues at hand. He presents as having reflected on, and thought through a number of issues that have affected him and his family. His thought processes throughout the interview with me were normal and spontaneous with no indication that the opinions he expressed were not his own. Thirteen year-old children are typically on the cognitive cusp of being able to comprehend and make sense of quite sophisticated and complicated personal issues and I did not note anything to suggest [J] has not mastered this developmental task. It is therefore my opinion that [J] displays a level of maturity which would make it appropriate for the Court to take account of his views.
EVALUATION
29. Both children are currently settled in their personal, family, and school environments. They are each at stages in their lives where peer relations are of central significance and it is via these social experiences that children of this age group derive a large component of their identity and sense of self. The formation of their respective identity will also be heavily influenced by their family system. Both children spoke of their current living arrangement as providing them with a sense of security and belonging. Importantly both children made the comment that they feel the other family members are “Happier” since leaving New Zealand.
30.[S] exhibits ambivalent feelings that relate less to the actual move and more to her sense that she has been disloyal to her father. My sense is that if [the father] could become more involved in [S’s] mind (eg. By telephoning her) her feelings of guilt and responsibility might hopefully start to recede.
31. Both children present as holding a close association between having to return to New Zealand and being forced into proximity with their father who they further associate with prior experiences of family unrest.
32.I understand from [the mother] that during his primary school years [J] moved school eight times in the context of the discord between the parents. I also understand that at this current school (First year of high school) [J] has been assessed as having learning difficulties and is receiving remedial support. In my opinion it is contraindicated to disrupt this process. Furthermore, [J] presents as an emotional fragile child which is probably reflected by [the father’s] comment to me that he feels [J] is a “Mummy’s boy”. [J’s] perception of him self as feeling happy and of having a good group of friends will most certainly help to boost this boy’s self-esteem and in this context I would be concerned if he were required to adjust yet again to a new school and peer group.
RECOMMENDATIONS
33. I respectfully request that the Court consider the potential negative implications for each child’s development if they are required to return to New Zealand. In my opinion [J] and [S] are constitutionally emotionally vulnerable and that this vulnerability is likely to be further compounded by them having to experience the turmoil and disruption which would inevitably come from having to return. I therefore recommend that [J] and [S] reman living in Australia where they have done so for almost eleven months.
34. If the Court decides not to return the children to New Zealand I propose [the mother] and [the father] be prompted to facilitate avenues for both children to have contact with their father as they desire both directly and indirectly (eg, Telephone). (original italics, bold emphasis added, except subheadings)
The relevant principles
In De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 655 the majority held, in respect of Reg 16(3)(c) in the form it took before its amendment with effect from 1 November 1995, that:
… there is no particular reason why reg 16(3)(c) should be construed by any strict or narrow reading of a phrase expressed in broad English terms, such as “the child objects to being returned”. The term is “objects”. No form of words has been employed which would supply, as a relevant criterion, the expression of a wish or preference or of vehement opposition. No “additional gloss” is to be supplied. (footnote omitted)
In so deciding, at 654 the majority rejected the approach of the majority of the Full Court below based upon a proposition in an English decision (footnote omitted) that:
The word ‘objects’ imports a strength of feeling which goes far beyond the usual ascertainment of the wishes of the child in a custody dispute.
Reg 16(3)(c), in its form under consideration by the High Court in De L (see at 653) had provided:
(3)A court may refuse to make an order under sub-regulation (1) or (2) if it is satisfied that -
…
(c)the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child’s views; or … .
Regulation 16 was substituted by SR 1995 No 296, which introduced the words “if a person opposing return establishes” instead of the words “if it is satisfied” (meaning, if the Court is satisfied), but otherwise the words of subregulation (c) remained the same.
By amendment by SR 371 of 2004, subregulation (c) took its current form split into three subparagraphs including as (c)(ii):
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
placed between the matters in subparagraphs (i) and (iii), which reflect, with only minor difference of language, what was previously provided in subregulation (c) before the 2004 amendment. (I have set out above (at par 69) subregulation (c) in its current form and need not set it out again).
Thus, in relation to the passage in De L set out, the phrase:
… the expression of a wish or preference …
no longer applies. However, the current form of Reg 16(3)(c) would appear to leave, as still apt, the majority’s opinion that:
… No form of words has been employed which would supply, as a relevant criterion, the expression of … vehement opposition. No “additional gloss” is to be supplied. (footnote omitted)
Elsewhere, in De L, the majority made clear its acceptance that a literal view of the term “objection” (or “objects”) should be taken: see at 657. In summary, therefore, the position would appear to be that it is not necessary for the person opposing return to establish “vehement” objection (a literal view of the term “objects" being appropriate) for the purpose of Reg 16(3)(c)(i). Plainly, however, the onus is on the person opposing return to establish the fact of a child’s objection for the purpose of Reg 16(3)(c)(i); that the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes for the purpose of Reg 16(3)(c)(ii); and that the child has attained an age and a degree of maturity at which it is appropriate to take account of his or her views for the purpose of Reg 16(3)(c)(iii).
As is plain, unless the person opposing return “establishes” each of those three matters the discretion to refuse return is not enlivened.
In De L, the High Court, per the majority, firmly rejected a submission that the “paramountcy principle” applies in proceedings under the Regulations: see at 651, 658; however at 661 made clear that in the exercise of the discretion under Reg 16(3)(c), if it be enlivened, “the welfare of the child is properly to be taken into consideration”:
… it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child’s return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the “discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]” enable it to be said that a particular consideration is extraneous. That subject matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.
The child’s objection must be to returning to the country from which wrongfully it was removed, and not objection to living with a particular parent: De L (above) at 655; although there may be some cases where those two matters are so linked that they cannot be separated: Director-General, Department of Community Services v Crowe (1996) FLC 92-717 (FC) at 83,641.
The words used in some of the authorities that the return to which the child objects must be an immediate return “so that the courts of that country may resolve the merits of any dispute as to where and with whom it should live” (see, eg, S v S(Child Abduction)(Child’s Views) [1993] Fam 242 at 250 per Balcombe LJ, cited in De L at 656 by the majority with apparent approval) are descriptive of the purpose and intent of a return order rather than as definitive of the child’s articulation of its wishes, and thus are no part of the principle but merely commentary on it: B v Director-General, Department of Community Services [2001] FamCA 50 (unreported) at [73]-[80] especially at [78]-[80] per Lindenmayer, Kay and Watt JJ. See also Agee v Agee (2000) FLC 93-055 at [75] per Finn, Holden and Guest JJ, obiter, but explained in B v Director-General, Department of Community Services at the paragraphs to which I have referred, and later will set out when dealing specifically with the submission by the Central Authority on this topic.
Where the grounds in Reg 16(3)(c) are made out, the consequence is not that the order will be refused, but that the Court is no longer obliged to return the child, having a discretion whether or not to do so. Clarke v Carson [1996] 1 NZLR 349 at 351; accepted by the New Zealand Court of Appeal in A v Central Authority for New Zealand [1996] NZLR 517; both cited in De L (above) at 656.
In exercising the discretion under Reg 16(3)(c) whether or not to order the return of a child, the court must balance the nature and strength of the child’s objections against “the Convention considerations” (obviously including comity and respect for the judicial processes in the requesting state) and also general welfare considerations: Zaffino v Zaffino (Abduction: Children’s Views) [2005] EWCA Civ 1012; [2006] 1 FLR 410 at [19]; see also Re M (Abduction: Child’s Objections) [2007] EWCA Civ 260 at [59] per Sir Mark Potter P.
Further, in exercising the discretion under Reg 16(3)(c) whether or not to return a child, it is necessary to bear in the forefront of one’s mind the principles underlying the scheme of the Convention: Zaffino (above) at [30]; Vigreux v Michel [2006] EWCA Civ 630 at [61].
In assessing the weight to be given to a child’s objections, if the Court should come to the conclusion that the child’s views have been influenced by some other person, eg, the abducting parent, or that the objection to return is because of a wish to remain with the abducting parent, then it is probable that little or no weight will be given to those views: S v S (above) at 501 per Balcombe LJ cited in Re M (above) at [58] by Sir Mark Potter P, who also, at [62], referred to earlier authority as to the necessity for discrete findings as to certain matters:
[62]As to the appropriateness of taking into account a child’s objections, in Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192, Ward LJ, having observed that each case would depend upon its own facts, set out the position thus, at 204:
(3)So a discrete finding as to age and maturity is necessary in order to judge the next question, which is whether it is appropriate to take account of the child’s views. That requires an ascertainment of the strength and validity of those views which will call for an examination of the following matters, among others –
(a) What is the child’s own perspective of what is in her interests, short, medium and long term? Self-perception is important because it is her views which have to be judged appropriate.
(b) To what extent, if at all, are the reasons for objections rooted in reality or might reasonably appear to the child to be so grounded?
(c) To what extent have those views been shaped or even coloured by undue influence and pressure, directly or indirectly exerted by the abducting parent?
(d) To what extent will the objections be mollified on return and, where it is the case, on removal from any pernicious influence from the abducting parent?
In AF v M B-F [2008] EWHC 272 (Fam), Sir Mark Potter P summarised Re M (above) this way at [44]:
44In Re M (A Child) [2007] EWCA Civ 260, the Court recently reviewed the questions which need to be explored by a judge when considering a defence of Child’s Objections. They may be summarised in this way. (1) Are the objections to return made out? In this connection is the child objecting to being returned to the county of habitual residence, as opposed simply to expressing a preference for staying with the abducting parent? (2) Has the child reached an age and degree of maturity at which it is appropriate to take account of his views? (3) In this connection have those views been shaped or coloured by undue influence or pressure directly or indirectly exerted by the abducting parent to an extent which requires such views to be disregarded or discounted? (4) If, and to the extent that, it is appropriate to take account of the child’s objections, in exercising the Court’s discretion whether or not to order return, what weight should be placed on those objections in the light of any countervailing factors, and in particular the philosophy of the Convention or what have been called the “Convention considerations”. These are that both the deterrence of abductors and the welfare interests of children are generally best served by the making of an order for prompt return to the requesting state for consideration of the position by the appropriate home court; they also include comity and respect for the judicial processes of the requesting state, as well as welfare considerations directed to the position of the child in question.
It is wrong to import any test of “exceptionality” of a particular case, in that, if the matters in (relevantly) Reg 16(3)(c) are established, that in itself creates an exception to the mandatory making of a return order: Re M & Anor [2007] UKHL 55 at [36]-[46] per Baroness Hale. In AF v M B-F (above) Sir Mark Potter P at [52] described those paragraphs as a “corrective” to views previously expressed and, after exhaustive analysis of those views, concluded at [64] that it was clear to him that the observations of Baroness Hale (with which all their Lordships agreed) expressly disapproving the addition of any “exceptionality” test over and above the express requirements of the Convention are of general application.
The submissions
On 4 August 2008, when the matter resumed, Mr Parrott, solicitor, who appeared for the Central Authority, on that date provided comprehensive written submissions, supplemented orally.
The thrust of the submissions was two-fold, first that the authorities make clear that any objection by the children must be objection to return to the Convention country, in this case New Zealand, rather than an objection to return to the parent in that country; and secondly that although the Central Authority did not relish the prospect of splitting the siblings J and S, the Convention applies to each child separately: Director-General, Department of Families, Youth and Community Care v Hobbs (2000) FLC 93-007; Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192 (CA).
In essence, Mr Parrott submitted that the evidence in relation to S is “at best ambivalent” in relation to her views, so that she ought to be returned to New Zealand; but that even in relation to J, the evidence in Mr P’s report “does not go far enough” to establish an exception to the obligation to return him to New Zealand.
Mr Parrott submitted also that the authorities, many of which I have referred to above, are to the effect that there is an onus on the mother to show that “what the child is actually objecting to” is the same as “the likely circumstances” of a return order in the particular case. It is important, having regard to the strength of Mr Parrott’s submission in this regard, to set it out. It is contained at par 15 of Mr Parrott’s written submissions:
15.It is submitted that a summary of the above authorities is that there is an onus upon the Respondent to show what the child is actually objecting to, is the same as the likely circumstances of the return in that particular case. This requires the Court to evaluate the nature, reasons and the way or ways in which the child objects to returning to the requesting country. The Court is also required to evaluate the evidence to form a conclusion on what is likely to be the consequences of the return that is ordered, ie. a return which will be followed by a judicial proceeding where it may be that a parent will be allowed to return to Australia with the child. If what the child is objecting to and the likely consequence of a return order do not coincide, then it is submitted that the child’s objection is not one which satisfies the exception. It would be wrong for a Court to find, for example, that a child who objects to returning to permanently live in a country, but who would have no objection to a return for so long as it would take for his/her parents to sort out where he/she should live and who he/she will live with, is found to object for the purposes of the Regulations, if [on] the facts of the case, it is likely that a judicial determination of where the child can live will follow a return to the requested country.
Mr Parrott’s submissions, under the subheading “On the Evidence”, were summarised as follows:
29.If the Court accepts the father’s version of events in relation to the contact that he has had with his children over time it would be necessary for the Court to consider the need to maintain that long standing relationship between his and his children.
30.There is no evidence directly from the mother that the children object to returning to New Zealand. It is accepted however that the children have adapted to their new environment and that their current friendships, schooling, and other matters concerned with their surroundings may provide a basis upon which they may be preferring the current environment.
31.In that context therefore the question that must always be asked is whether the children would express the same views if the decision had been taken by the mother to return to New Zealand for reasons of her own. That is are the children expressing a preference to remain with their mother and her partner as opposed to objecting to being returned to New Zealand.
32.It is then necessary to examine the evidential basis upon which the children are allegedly opposed to returning to New Zealand. [J] expresses one view that he is concerned that the return to New Zealand would bring him back in proximity with his father. Yet on his own statements to report writer he had not seen or had contact with his father for at least a year. To that extent therefore these views have an air of unreality about them.
33.However, there is no evidence that anything untoward had occurred between the parents since immediately after their separation in 2004. Therefore there had been approximately three and half years since the last altercation. The fear that they may be brought back into contact with their father and re-witness those events, which is what their fears are apparently based upon, between the parents is unrealistic.
34.Further the report provides no insight into whether the children understand that what is being sought is return to the jurisdiction of their habitual residence so that the Courts of that country may determine where and with whom the children should live. Further the report has not demonstrated any understanding about the Court processes that would be adopted in New Zealand and in particular as to whether the children are aware that New Zealand Courts may take account of their views and eventually allow them to return to Australia.
35.The evidence in relation to [S] is at best ambivalent in relation to her views.
36.It is well accepted that the respondent bears the onus of proof in establishing an exception under the Regulations. It is submitted that there is no direct evidence of the respondent in support of the allegations or the exceptions. Moreover the evidence set out in the report does not go far enough to establish the exceptions for the purpose of the Regulations.
37.In that event it is submitted that the Court will not find that the children object for the purposes of the Regulations and that an order for their return should be made.
The mother submitted that on the basis of the report each of the matters in Reg 16(3)(c) is established, the discretion should be exercised not to return the children, and further, in any event the siblings should not be split.
Issue of law raised by the Central Authority as to whether the children’s objection needs to show awareness of the purpose of a return order
It is necessary at the outset to deal with Mr Parrott’s submissions, in pars 15 and 34 of the written submissions, at the parts highlighted, which go to the heart of the nature of an objection for the purpose of Reg 16(3)(c)(i). As I read the parts highlighted they seem to amount (at least in part) to a submission that in order to be a valid objection for the purpose of Reg 16(3)(c)(i) the children needed to demonstrate to the report writer that what they are “actually objecting to” is a return order “so that the courts of [New Zealand] may determine where and with whom [the children] should live” as “the likely consequence of a return order”. There are however two authorities against the acceptance of that submission. The first is De L (above) at 655 and 657, where the High Court, per the majority, made clear that “no additional gloss” is to be put upon the word “objects”, and that “a literal view” be taken of the term “objection”. The second is B v Director-General (above) in which, in a joint judgment, at [73]-[80], Lindenmayer, Kay and Watt JJ exhaustively considered whether the words of Balcombe LJ in S v S (above) “so that the courts of that country may resolve the merits of any dispute as to where and with whom it should live” were intended by his Lordship to be a gloss on the word “objects”, or mere commentary on the purpose of a return order. The Full Court, after such exhaustive analysis, concluded that these “now apparently contentious words” were “descriptive of the purpose and intent of a return order rather than as definitive of the child’s articulation of his or her wishes” and thus “no part of the principle but merely … commentary on it”:
78.The Full Court, in Agee, then referred to and quoted a passage from the judgment of the Full Court in De L (Full Court) No.2, in which that Court dealt with and rejected a submission which had been made in that case that the statement by the Full Court in Crowe containing the passage emphasised in the last quotation was inconsistent with the judgment of the Hight Court in De L (High Court) No.1. The Full Court in Agee then said this:
“Whilst this issue was not argued before us, we are nonetheless constrained to say that the arguments apparently advanced in De L (Full Court) No.2 concerning the correctness of the decision in Crowe appear, on the face of them to have merit. It is strongly arguable that the words ‘ … so that the courts of that country may resolve the merits of any dispute as to where and with whom the child should live’ form no part of the statement of principle, but merely constitute a commentary on it. Given what the High Court had to say in De L (High Court) No.1, the wording of reg 16(3)(c) should be accorded its natural and ordinary literal meaning. That is, that the child ‘… objects to being returned’ (in this case to New Zealand) qualified however, with a consideration as to whether the child has ‘… attained an age and degree of maturity at which it is appropriate to take account’ of that child’s views.”
79.It seems to us that the Full Court in Agee may have read more into the above quoted statement of the earlier Full Court in Crowe than that Full Court intended. The words “so that the courts of that country could resolve the merits of any dispute as to where and with whom [the child] should live”, were used by the Court in Crowe immediately following the words “whether the return to which C objected was the return which would otherwise be ordered, namely an immediate return to New Zealand”, in the same way as the identical words were used by Balcombe LJ in S v S (supra) adopted by the Court of Session in Urness v Minto (supra) and picked up, with approval, by the High Court in De L (High Court) No.1 in the passage quoted earlier in Agee and referred to in paragraph 75 hereof. Those now apparently contentious words were, we think, intended by the Full Court in Crowe, as no doubt they were by Balcombe LJ in S v. S, to be descriptive of the purpose and intent of a return order rather than as definitive of the child’s articulation of his or her wishes, and thus (to use the words of Agee in the passage quoted in paragraph 78 hereof) “no part of the principle but merely … commentary on it”. With respect, we think the earlier Full Court in De L (Full Court) No.2, in the passage quoted by the Full Court in Agee and referred to in paragraph 78 hereof, appreciated that point when it rejected the submission for the wife that Crowe had been wrongly decided.
80.The significance of all this, for present purposes, is that those cases demonstrate that it is important for the Court, when applying the provisions of reg 16(3) (which provide exceptions to the mandatory return of children required by reg 16(1)), to bear firmly in mind that an order for the return of a child does not determine the custody of the child upon his or her return, but only that he or she should be returned to the country from which he or she was removed, in order that the courts of that country may determine that issue, and that the courts of this country should give full faith and credit to the capacity of those foreign courts to act in the best interests of the child once he or she comes under their jurisdiction. (emphasis added)
In my respectful view, the decision in B v Director-General fits comfortably with the statement of principle by the High Court in De L that “no additional gloss” be given to Reg 16(3)(c). Further, as noted in De L v Director-General, NSW Department of Community Services (1997) FLC 92-739 at 83,939 [De L (Full Court) No 2] the articulation by children that they object to being returned to enable the courts of that country to resolve the merits of any dispute as to where and with whom the children should live is “not the language of children”.
In a later Full Court decision In Re F(Hague Convention: Child’s Objections) (2006) FLC 93-277 at [54]-[56] Bryant CJ, Kay and Boland JJ referred to the “considerable discussion” in the cases on “precisely what it is that the child objects to”. Their Honours referred to the earlier Full Court decision in Agee v Agee (2000) FLC 93-055, but curiously their Honours did not refer to B v Director-General, decided the following year in 2001. In In Re F their Honours noted that it was not necessary in that particular case to refer further to the point. It is useful, however, to set out their Honours’ observations:
54. There has been considerable discussion in the cases in the texts on precisely what it is that the child objects to. The relevant regulation talks about the child objecting to “being returned”. Several of the cases have endeavoured to read down that phrase to mean effectively being returned to the county of habitual residence for the purposes of enabling that country to determine where and with whom the child should reside. The view was expressed by the Full Court (Barblett DCJ, Ellis and Lindenmayer JJ) in Director General of Department of Community Services and Crowe (1996) FLC 92-717 and reaffirmed in De L and Director General NSW Department of Community Services (1997) 21 Fam LR 413 at 426 that the objection was an objection to being returned to the country of the child’s habitual residence and not to living with a particular parent. The Court went on in De L to say:
“However, as was pointed out by Balcombe LJ in Re R (Child Abduction: Acquiescence) (1995) 1 FLR 716, there may be cases ‘where the two factors are so inevitably and inextricably linked that they cannot be separated’.
…We would not suggest that children must articulate that they object to being returned to the country of their habitual residence for the purpose of enabling the courts of that country to resolve the merits of any dispute as to where and with whom they should live in order to come within the provisions of reg. 16(3)(c). That is not the language of children and the Court should not expect them to formulate and articulate their objection, if they had objected in the relevant sense, in that manner. The Court must have regard to the whole of the evidence and determine, no matter how the children articulate their views, whether the children object in the relevant sense.”
55. In Agee and Agee (2000) FLC 93-055 a differently constituted Full Court (Finn, Holden and Guest JJ) questioned whether it was appropriate to place any gloss upon the words “objects to being returned” to import the words “so that the courts of that country may resolve the merits of any dispute as to where and with whom the child should live.”
56. Ultimately it is unnecessary for us in this case to further comment upon the argument. …
In my view, a requirement that the child understand the purpose of a return order would amount to an “additional gloss” on the term “objects”. That is not to say however that in some cases the purpose of a return order ought not be explained to a child, or that it would be wrong to do so, or that in some cases children ought not be asked whether they would maintain objection if the purpose of a return order were explained. It follows from the above however that there is no requirement for such, and thus no requirement upon the report writer to explain to the child the purpose of the Regulations in every case or even in any case. There is a requirement, as noted in the authorities, that report writers understand that the child’s objection be to return to the country, rather than the parent in that country. However, there is no criticism by the Central Authority that the report writer did not understand that. Further, that much was made plain in the order which I made on 20 June 2008, set out above: see par 1(a) of the order.
Mr Parrott’s written submissions, in argument on this point, referred also to several single judge decisions concerning the “apparently contentious words” including Director General, Department of Families, Youth and Community Care v A [1999] FamcA 182; Director General, NSW Department of Community Services v S [1999] FamCA 611; Director General, Department of Family Youth and Community Care v A [2000] FamCA 738; and Director General, Department of Community Services v T (Family Court of Australia, O’Ryan J, 30 April 1997). However, whilst all of these decisions were after the High Court decision in De L, all pre-dated B v Director-General, which stands as binding authority on the point. I conclude therefore that although the reasons advanced by a child who objects to return potentially (in a particular case) may be relevant for the purpose of Reg 16(3)(c)(ii) and (iii) it is not necessary for a child to articulate or demonstrate an understanding of the purpose of a return order to find that a valid objection is taken for the purpose of Reg 16(3)(c)(i).
In this regard, I make clear my acceptance of Mr Parrott’s submissions in the second sentence of par 15, but for the pupose of Reg 16(3)(c)(ii) and (iii):
This requires the Court to evaluate the nature, reasons and the way or ways in which the child objects to returning to the requesting country.
The third sentence in par 15 however is problematic:
The Court is also required to evaluate the evidence to form a conclusion on what is likely to be the consequences of the return that is ordered, ie. a return which would be followed by a judicial proceeding where it may be that a parent will be allowed to return to Australia with the child. … (emphasis added)
The submission suffers from being contrary to what was stated by the High Court in DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 to the effect that it is appropriate to take into account that there may be but not must be such proceedings:
33The content of those exceptions must be understood against the other provisions of the Regulations which, as has earlier been pointed out, make plain that there may be an order for return with no expectation that there will be any judicial process in the country to which the child will be returned in which any question about what is in the best interests of the child will be raised or addressed. Often enough, of course, there will be proceedings pending or anticipated in the country to which an order for return is sought. Many cases have been decided under the Regulations, and under equivalent provisions applying in other Convention countries, in which that has been so. If, on return of the child, there will be a court hearing that will decide what arrangements for custody of and access to the child will be in that child’s best interests, an Australian court, exercising a discretion under the Regulations, will no doubt take that into account. But the construction of the Regulations cannot proceed from a premise that they are designed to achieve return of children to the place of their habitual residence for the purpose of the courts of that jurisdiction conducting some hearing into what will be in the that child’s best interests. As the Regulations recognise, questions of rights of custody in the country to which return is sought are regulated in some cases by operation of law, by administrative decisions, or by agreement. There may be neither occasion nor opportunity for any engagement of the judicial processes of that country. (footnote omitted; emphasis added)
Mr Parrott’s submissions require me also to observe that whilst plainly the purpose and intent of a return order is “so that the courts of that country may resolve the merits of any dispute as to where and with whom [the child] should live” it would be wrong to anticipate the likely outcome of any judicial proceedings in New Zealand upon any return but rather, once the discretion is enlivened, to take into account that there may be but not must be such proceedings and the likelihood of such proceedings occurring: JLM (above).
This matter however relates to exercise of the discretion, if it be enlivened, not construction of the Regulations, which the passage set out makes clear. Thus, it is made more plain that a child need not articulate nor show awareness of the purpose and intent of the Regulations so as, for example, not to object to a return for the purpose of there being proceedings concerning the child in the courts of the requesting country, because as things may eventuate there may be no such proceedings ultimately if, for example, the abducting parent after a return order be made should choose not to institute them. Thus it cannot be right, as a matter of construction of the Regulations, to require that a child articulate in an objection an understanding of the purpose of a return order, nor to investigate whether the child would not object if there be likely to be such proceedings but would object if there be likely not to be such proceedings as matters characterising the objection as opposed to matters to be taken into account once the discretion is enlivened if it is.
Regulation 16(c)(i) – both children - objection
Both children have objected to returning to New Zealand, from their own perspectives, related to being happy and settled in Australia in the family unit comprising the mother and her husband Mr Milson and happy with their location on the Sunshine Coast and in their school environments and with their peer activities. See the report pars 16 (S), 21 (J) and 22 (both). The case is one however in which the children’s views are “inevitably and inextricably” linked with a preference to live with the mother and of unpleasant memories of the father.
I am satisfied, nonetheless, that the mother has established that the children’s objection is to a return to New Zealand, the country, rather than objection to return to live in proximity with the father, to have the ordered access with him. It is questionable, on the evidence, whether the father regularly exercised access pursuant to the final order that it should occur. However, as mentioned, I am not able to determine that matter on the papers, it being one of credibility.
I am satisfied, from the content and tenor of the report, that the children have expressed their objections sincerely, genuinely, and freely, and have not been coached by the mother. I am satisfied, therefore, that in relation to both children the requirement in Reg 16(c)(i) is established.
I will deal below, in relation to Reg 16(c)(ii), with Mr P’s observations as to S’s “ambivalence”, that is, when dealing with the subject matter of strength of feeling and whether her objection is beyond the mere expression of a preference or ordinary wishes. For present purposes, having regard to the circumstance that “objects” is to be given a literal meaning, there is no doubt that each child, relevantly has “objected”.
It is necessary now to deal with pars 30 and 31 of Mr Parrott’s submissions. It is incorrect that there is no evidence directly from the mother that the children object to returning to New Zealand: see par 18 of the mother’s affidavit filed by leave on 22 May 2008, extracted above. Although the mother’s evidence at that part was that the children “are happy in Australia and want to stay here”, the observation is apt as to the evidence amounting to “two sides of the same coin”: Director-General, Department of Families Youth and Community Care v Thorpe (1997) FLC 92-785 per Lindenmayer J at 84,678. Moreover, it is not the mother’s evidence on which I have relied in relation to the children’s objections, but rather Mr P’s evidence as dealt with already.
Paragraph 31 raises the question “whether the children would express the same views if the decision had been taken by the mother to return to New Zealand for reasons of her own”. That question is hypothetical in the present case, having regard to the fact that the mother and her husband moved to Australia in September 2007. Moreover, I have observed already that the children’s preference to live with the mother is “inevitably and inextricably” linked with the articulation of their objection. Further, the report has many examples of the children preferring their school, sporting and peer environments here: see eg, the report par 12 (S) and pars 19, 21 and 24 (J). As to whether the children are “expressing a preference to remain with their mother and her partner [husband] as opposed to objecting to being returned to New Zealand”, I have mentioned already that whilst on the material it is not doubted that the children have expressed their objections in the context of being part of a family unit in Australia comprising the mother, her husband, and themselves, the evidence nonetheless makes clear that from their own perspectives they are happy with their location in Australia and with their school environment, peers and peer group activities in Australia.
Regulation 16(3)(c)(ii) and (iii) - J - strength of feeling – whether beyond the mere expression of a preference or ordinary wishes - age and maturity - whether appropriate to take account of his views
In relation to J, the mother has established that his objection shows a strength of feeling beyond the mere expression of a preference or ordinary wish and that he has attained an age and degree of maturity at which it is appropriate to take account of his views. J, at 13 years, told Mr P he wished to remain in Australia. In terms, he did not say expressly that he did not wish to return to New Zealand. However, in context it seems to me that his expression amounts to “two sides of the same coin”, as discussed already. This is made more clear by Mr P’s question to J as to why he did not want to return to New Zealand, in response to which J said “Because [the father’s] there. He might find us and come there and start a fight with Mum again”. Mr P’s assessment was that J “is much clearer in his objection to returning to New Zealand” (than S) and that his comments “conveyed a strongly held position in this regard” based upon two factors, his successful adjustment to living in Australia (schooling and peers) and his apprehension that returning to New Zealand would mean a re-exposure to his father’s “volatile ways”: report, par 24. As to the first of these factors, there is detail as to J’s adjustment to life and to school in Australia at par 10 of the mother’s affidavit filed on 16 May 2008, set out above. As to the second factor, I note Mr Parrott’s submission (pars 32 and 34 of the written submissions, set out above) that J’s fears (“views”) have an “air of unreality” because he had said to Mr P (report, par 20) that he had “kind of forgotten” the last time his father had spoken to him but that it was “About 1 or 2 years ago”; and there is no evidence of “anything untoward” between the parents since their separation in 2004, with three and a half or so years since their “last altercation” so that “the fear that they may be brought back into contact with their father and re-witness those events” is unrealistic. However, plainly J’s fear as to re-exposure to the father’s “volatile ways” was based upon what he told Mr P, namely that the father “might find us and come there and start a fight with Mum again”. Whether realistic or unrealistic, it is plain that J nonetheless holds the fear he expressed. The second factor, however, seems “inextricably” bound up with the first factor, as being a “package” of J’s reasons for his “strongly held position” of objecting to return to New Zealand.
Moreover, independently of reference to the father, J expressed clearly to Mr P that he did not want to return to New Zealand because “I think I’m happier here. I love being able to go swimming all the time and I like my friends” (report, par 16); and his enjoyment of his school, peer and extra-curricular activities in Australia (report, par 19).
Mr P said of J’s objection that he is far more confident (than in relation to S) that his objection “demonstrates a strong opposition to returning to New Zealand” (report, par 26), which he based upon J’s “affective responses during interview, his thought content, and the consistency in his remarks”. I accept Mr P’s evidence as to J’s strength of objection, and based upon it find that his objection shows a strength of feeling beyond the mere expression of a preference or ordinary wish.
I accept also Mr P’s evidence that J, at 13 years, expressed opinions which are his own and that he displayed a level of maturity which would make it appropriate for the Court to take account of his views. Mr P’s opinion in this regard (report, par 28) is carefully worded in the context of J being “a thoughtful child who is mindful of the matter and issues at hand”.
I turn now to the matters referred to by Sir Mark Potter P in AF v M B-F (above) and by Ward LJ in Re T (above). There is no evidence that J’s objection has been “shaped or even coloured” by undue influence or pressure, directly or indirectly, by the mother which would require his objection to be discounted or disregarded. Mr P said (report, par 28) that J’s thought processes throughout the interview were normal and spontaneous “with no indication that the opinions he expressed were not his own”. As to J’s own perspective of his interests in the “short, medium and long term”, in context of the Convention “long term” for a 13 year old child may be taken to be the duration of his childhood, that is, the next five or so years. Mr P’s report shows that J has considered his position from his own perspective in the context of his school, peer and family environment as well as his apprehension that in New Zealand he would or may be re-exposed to his father’s “volatile ways”: report, pars 19, 24. Although J did not expressly refer to the “medium and long term” as opposed to the context of the short term, it is clear enough from the paragraphs of the report referred to that he was considering these matters from his own perspective on the basis of continuum. I have dealt already with Mr Parrott’s submission that J’s concern of being brought back into proximity with the father has an “air of unreality” and that his fear of re-witnessing altercation between the mother and the father is unrealistic. As to whether the basis of J’s objection, being the “two factors” referred to may be “mollified on return”, by its nature the first would not; and the second is not readily predictable. In relation to J’s views however Mr P has said that J “presents as a thoughtful child who is mindful of the matter and issues at hand” and that J has “reflected on and thought through a number of issues that have affected him and his family” (report, par 28).
In summation, on the evidence the mother has established that J’s objection is genuine, his objection is to returning to New Zealand, his objection is from his own perspective for his own stated reasons, it has a strength of feeling beyond the mere expression of a preference or ordinary wishes and that he has attained an age and degree of maturity at which it is appropriate to take account of his views. In all of the circumstances I am unable to accept Mr Parrott’s submission that the evidence in Mr P’s report “does not go far enough” to establish an exception giving rise to exercise of the discretion by which I may refuse to order J’s return to New Zealand.
Regulation 16(3)(c)(ii) and (iii) – S- strength of feeling – whether beyond the mere expression of a preference or ordinary wishes - age and maturity - whether appropriate to take account of her views
In relation to S, on my first reading of Mr P’s report, I was not convinced that the mother had established that S’s objection showed a strength of feeling beyond the mere expression of a preference or ordinary wishes, having regard to his references to her “ambivalence”. However, as will be seen, upon closer analysis, a close and careful reading of the report has the effect of establishing that her objection does in fact show a strength of feeling beyond the mere expression of a preference or ordinary wishes, and that she has attained an age and degree of maturity at which it is appropriate to take account of her views.
“Ambivalence” has the dictionary meanings of “the coexistence in one person of the emotional attitudes of love and hate” or “opposite feelings towards the same object or situation” (Oxford); and “the coexistence in one person of opposite and conflicting feelings towards someone or something” and “uncertainty or ambiguity, esp. due to inability to make up one’s mind” (Macquarie).
Mr P has used the expression “ambivalent” or “ambivalence” no fewer than six times in the report and in one context the expression “strong ambivalence”: see pars 15, 23, 25 and 30 of the report.
At first blush, it would be easy to conclude that “There is ambivalence, therefore either there is not a proper or real objection and even if there is it is not one showing strength of feeling etc so that, without more, [S] should be returned to New Zealand”.
However, on close analysis, which is essential for a proper understanding of the report, Mr P has stated clearly that S’s ambivalence to returning to New Zealand in not ambivalence in her wanting not to return to New Zealand, the country, but rather relates to her:
·Mixed feelings towards her father (report, par 15)
·Desire not to hurt either of her parents (report, par 23)
·Conflicted loyalties to each of her parents which she is struggling to resolve (report, par 25) and
·Sense that she has been disloyal to her father (report, par 30).
Mr P said, further, importantly, that:
·“… [S] does, in my opinion, have a strong desire not to return to New Zealand …”, which is “based upon factors that one would expect from a child of her age (eg. Peer relations, personal gratification) …” (report, par 23) and
·“… This aside, I am of the opinion that after considering what she expressed to me together with her presenting affect and demeanour, that [S’s] objection to returning to New Zealand is both of her own making and beyond an expression of a preference” (report, par 25).
In so concluding, Mr P, at the commencement of par 25, had started with the premise that:
25.In the case of [S] it is difficult to dismiss the possibility that her objection to returning to New Zealand may merely be a wish …;
but nonetheless reasoned, as I have set out, by the end of par 25, that her objection indeed was not merely a wish but:
… beyond an expression of a preference.
On any view, the evidence concerning S’s objection is not as strong as the evidence concerning J. However, the exercise is not a comparative one in relation to each child, but one in which each child’s objection must be considered in the light of what he or she individually has expressed to the report writer, and consideration given to the report writer’s evaluation of strength of feeling in relation to each of the two children as individuals.
I accept also Mr P’s evidence that S, at 11 years, is an emotionally intelligent, mature child (report, par 27), that her opinions are her own and that she demonstrated to him a level of maturity which would make it appropriate for the Court to take account of her views (report, par 27). Mr P’s opinion in this regard is carefully worded in the context of S’s “consistency, coherency, and organisation of her responses” so that Mr P formed the view that she has “thought through what she told me in the interview”.
As to the matters identified by Sir Mark Potter in AF v M BF (above) and by Ward LJ in Re:T (above), I would make similar observations as in relation to J. In short, there is no evidence that S’s objection has been “shaped or coloured” by undue influence or pressure, directly or indirectly, by the mother, which would require her objection to be discounted or disregarded. Mr P said (report, par 27) that he concluded that S’s opinions are her own. As to S’s own perspective of her interests in the “short, medium and long term”, I would make the same observations as I have made in relation to J, with the obvious exception that any “long term” perspective for S would be the next seven or so years, rather than five. Mr P’s report shows that S has considered her position from her own perspective in the context of her school, peer and family environment. As to whether the basis of S’s objection may be “mollified on return”, there is no indication of this, particularly having regard to Mr P’s view that her objection is “without doubt related in part” to her “concern that the relocation [return] would mean more family conflict, which given her age is a reasonable deduction” (report, par 23); and his observation, in essence, that it is up to the father to “become more involved” eg “by telephoning her” (report, par 30) for S’s “feelings of guilt and responsibility” hopefully to “start to recede” rather than there being prospect of “mollification” upon any return. That is to say, I had the impression from Mr P’s report that he holds the view that whether S is in Australia or New Zealand, it is really up to the father to instigate mollification or appeasement, by at least telephoning S, whether she be in Australia or New Zealand.
In summation, on the evidence the mother has established that S’s objection to return to New Zealand is genuine, her objection is to returning to New Zealand, her objection is from her own perspective for her own stated reasons, it has a strength of feeling beyond the mere expression of a preference or ordinary wishes and she has attained an age and degree of maturity at which it is appropriate to take account of her views. In all of the circumstances, I am unable to accept Mr Parrott’s submissions to the contrary.
Exercise of the discretion – both children
I have referred already to the nature of the discretion as “unconfined except in so far as the subject matter and the scope and purpose of the [Regulations] enable it to be said that a particular consideration is extraneous, and that the children’s welfare is a relevant consideration in exercise of the discretion”: De L (above), at 661 per the majority of the High Court.
Mr Parrott (written submissions, par 29) raised that if the Court should accept the father’s version of events “in relation to the contact that he has had with his children over time it would be necessary for the Court to consider the need to maintain that long standing relationship between him and his children”. I take this into account, however, I have remarked already upon this aspect of the matter.
In relation to JLM (above) at [33], I take into account that upon any return there may but not must be judicial proceedings in New Zealand at the instigation of the mother to seek an order that she be permitted to relocate the children to Australia, and that in all probability, if a return order be made, the mother may be likely to instigate such proceedings.
I take into account that I must weigh the children’s objections to return, and their stated reasons for their objections, against what might be called “the Convention considerations” (so described in the authorities), in particular that it is fundamental that children wrongfully removed from a Convention country must be returned, subject only to the evidentiary establishment of one of the exceptions enlivening the discretion not to order a child’s return and then exercise of that discretion not to order a return.
I take into account also the children’s welfare. In this regard, pars 29-34 of Mr P’s report indicate that a return order would be contrary to each child’s welfare. In relation to J, I would refer in particular to pars 29, 32 and 33 in relation to his learning difficulties and his remedial support at his current school and would refer also to Mr P’s opinion that it is “contraindicated to disrupt this process”; to Mr P’s opinion that J “presents as an emotional fragile child which is probably reflected by [the father’s] comment to me that he feels [J] is a “Mummy’s boy””; and to his further opinion that “[J’s] perception of himself as feeling happy and of having a good group of friends will most certainly help to boost this boy’s self-esteem and in this context I would be concerned if he were required to adjust yet again to a new school and peer group”. Mr P spoke also of “the potential negative implications” for J’s development if he is required to return to New Zealand and that he is “constitutionally emotionally vulnerable” and that this vulnerability “is likely to be further compounded by [his] having to experience the turmoil and disruption which would inevitably come from having to return”. That is to say, it is not simply the case that J is “happy” in Australia, but there is positive evidence of negative impact on his development if I should not exercise the discretion to refuse to order his return to New Zealand.
In relation to S, I would refer in particular to pars 29 and 33. Mr P referred to S’s comment that she is “happier” since leaving New Zealand; and made the same welfare observations as to the potential negative implication for her development, if she is to be required to be returned to New Zealand, as for J:
33. I respectfully request that the Court consider the potential negative implications for each child’s development if they are required to return to New Zealand. In my opinion [J] and [S] are constitutionally emotionally vulnerable and that this vulnerability is likely to be further compounded by them having to experience the turmoil and disruption which would inevitably come from having to return. I therefore recommend that [J] and [S] reman living in Australia where they have done so for almost eleven months.
Having considered all of the evidence, the submissions and all of the matters relevant to exercise of the discretion, I am satisfied in relation to each child that the proper exercise of my discretion is not to order their return to New Zealand. In particular, in my view in this particular case the welfare considerations tilt the balance against favouring a return order, and I so decide bearing in mind always the purpose and intent of the Convention.
In these circumstances it is not necessary to consider splitting the siblings, as conceivably might occur if a return order were made for one of the children but not both.
Regulation 16(5) – the residual discretion
Having regard to all of the circumstances of the case, and all of the factors relevant to exercise all the residual discretion, including the underlying purpose and intent of the Convention, I am not persuaded to exercise it, particularly having regard to the welfare considerations of the children described by Mr P.
Conclusion
The result is that the Director-General’s application for a return order will be dismissed.
I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly
Associate:
Date:
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Consent
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Natural Justice
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Procedural Fairness
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Standing
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