Director-General, Department of Child Safety & R

[2005] FamCA 1116

[2005] FamCA 1116

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE     No. BRF 2146 of 2005

BETWEEN:
  DIRECTOR-GENERAL
  DEPARTMENT OF CHILD SAFETY  
  Applicant

AND:

R

Respondent

BEFORE THE HONOURABLE JUSTICE O’REILLY

REASONS FOR JUDGMENT

Dates of Hearing:                 11 November 2005

Date of Judgment:                22 November 2005

Appearances:  

Mr Parrott, Solicitor, appeared for the Central Authority

The respondent mother appeared in person

Name of Case:  DIRECTOR-GENERAL DEPARTMENT OF CHILD   SAFETY AND R

File Number:  BRF 2146 of 2005

Date of Hearing:                   11 November 2005

Date of Judgment:               22 November 2005

Coram:  O’Reilly J

Catchwords:

Hague Convention

Legislation considered:

Family Law (Child Abduction Convention) Regulations, Guardianship Act 1968 (NZ),

1 Guardianship Amendment Act 1991 (NZ) which was amended by the Guardianship Amendment Act (No.2) 1994 (NZ),

Care of Children Act 2004 (NZ)

Cases considered:

Panayotides and Panayotides (1997) FLC 92-733 (FC),

In re P (A Child) Abduction: Custody Rights (2004) EWCA Civ 971; 2004 All ER (D) 520; 2005 Fam 293,

In re F (A Minor) (Child Abduction) [1992] 1 FLR 548,

Director-General, Department of Families, Youth & Community Care v D (unreported), [1999] FamCA 118

Application

1. This is an application filed on 27 July 2005 by the Director-General, Department of Child Safety under the Family Law (Child Abduction Convention) Regulations for an order pursuant to reg 15 of the Regulations that the child S born in March 2004, now 20 months, be returned to New Zealand.

Issues

1. At the outset of the hearing the mother stated, in respect of the matters in reg 16(1A), in respect of which the Central Authority has the onus, that the matters in reg 16(1A)(a) and (b) (child under 16; habitual residence in New Zealand) were conceded; but placed in issue the matters under reg 16(1A) (c), (d) and (e) (father’s rights of custody under New Zealand law; father actually exercising or would have exercised rights of custody), on the basis that at the date of her retention of the child in Australia the father had no rights of custody under New Zealand law by the application of s 6 of the Guardianship Act 1968 (NZ) in that she and the father were not living together as husband and wife at the time the child was born.

2. As to reg 16(3), in respect of which the mother has the onus, she stated that she relied solely on reg 16(3)(a)(i), on the basis that the father was neither exercising rights of custody nor would have exercised those rights if she had not retained the child.

3. Plainly enough, if the Central Authority should fail to discharge the onus upon it that the father had rights of custody at the date of the retention there would be no onus to shift to the mother for the purpose of reg 16(3). 

Procedure

1. The Solicitor for the Central Authority, conceded, properly, that if I should find that the Central Authority has failed to satisfy the Court pursuant to reg 16(1A)(c) that the father had rights of custody under New Zealand law at the time of the child’s retention in Australia, then I should dismiss the Central Authority’s application.

2. Plainly, this concession was correct in that, unless the Central Authority is able to establish that the father had rights of custody under New Zealand law, it will have failed to satisfy the Court that the retention was wrongful: s 16(1)(c); s 16(1A).

3. Further, as is plain, if the Central Authority should fail to satisfy the Court that the retention was wrongful, there is no onus to shift to the mother to prove anything under reg 16(3).

Relevant background facts

1. The requesting father was born in the United States of America and is 30 years.  He is a citizen of the United States of America and presently resides in New Zealand.

2. The respondent mother was born in New Zealand and is 41 years.  She is a New Zealand citizen and presently resides in Australia.

3. The child was born in New Zealand.

4. The mother and the father had what the father describes as a “brief sexual relationship” which resulted in the mother’s pregnancy. 

5. In April 2005, the mother, with the father’s permission, travelled to Australia with the child for a one month holiday.

6. It is common ground that the date of the retention was 20 May 2005.

The relevant New Zealand law

1. At the date of the retention, the relevant New Zealand law was contained in the Guardianship Act 1968 (NZ) and the Guardianship Amendment Act 1991 (NZ) which was amended by the Guardianship Amendment Act (No.2) 1994 (NZ).

2. The Care of Children Act 2004 (NZ) came into force on 1 July 2005, replacing the Guardianship Act 1968 (NZ) and the amending Acts.

3. It is common ground (as plainly is correct) that I should apply the New Zealand law as it stood at the date of the retention. 

4. Section 3 of the Guardianship Act 1968 (NZ) defined “guardianship” as meaning:

   “The custody of a child (except in the case of a testamentary guardian and subject to any custody order made by the Court) and the right of control over the upbringing of the child, and includes all rights, powers and duties in respect of the person and upbringing of the child …”.

5. Section 4 of the Guardianship Amendment Act 1991 (NZ) provided:

   “4.      For the purposes of this part of the Act, the term of rights of custody in relation to a child, should 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, attributed to a person, institution or other body either jointly or alone under the law of the contracting State in which the child was habitually resident immediately before the removal or retention of the child.”

6. Section 6 of the Guardianship Act 1968 (NZ) provided:

   “6       Guardianship of children –

   (1) Subject to the provisions of this Act, the father and the mother of a child shall each be a guardian of the child.

   (2) Subject to the provisions of this Act, the mother of a child shall be the sole guardian of a child if –

   (a) she is not married to the father of the child, and either:

   (i) has never been married to the father; or

   (ii) her marriage to the father of the child was dissolved before the child was conceived; and

   (b) she and the father of the child were not living together as husband and wife at the time the child was born.”

   [bold emphasis added]

The evidence

1. The Solicitor for the Central Authority referred to the following as constituting the Central Authority’s evidence to establish that the father and the mother were living together as husband and wife at the time the child was born:

   ·Father’s affidavit sworn 20 June 2005 (not separately filed, but annexed to the affidavit of Ms T filed 27 July 2005), par 2 and annexure C:

   Par 2

   “2       I am the father of [S]…Annexed hereto and marked with the letter “A” is a copy of her birth certificate…[The mother and I] had a brief sexual relationship which resulted in [the mother] becoming pregnant. Once the pregnancy was known we commenced a relationship which included us living together for a period up until shortly after [S] was born.  I was present at [S’s] birth.”  

   [bold emphasis added]

   Annexure C

   This document comprises part of a statement made by the mother on 12 January 2005 in respect of an application for a custody order in the District Court at Nelson, New Zealand.  The relevant parts relied on are pars 1 and 2:

   “1       The Respondent and I have been living apart since September 2004.

   2       I have been the principal caregiver for the child since she was born             and she has been living with me since the Respondent and I    separated.”

[bold emphasis added]

·Father’s affidavit filed 4 October 2005, par 3 and annexure A:

Par 3

“3       [The mother] sponsored my immigration status in New Zealand.  We made an application in July 2004.  I have been able to obtain the document lodged with the Immigration Service which is a letter from her dated 7 July 2004 confirming that we have been in a committed relationship since June 2003 and living together since March 2004.  It is annexed hereto and marked with the letter “A”.  We were also required to provide documentation such as joint bank accounts and other accounts showing our joint address.  Annexed hereto and marked with the letter “B” are copies of those statements.  I also annexe a letter of support provided by a colleague of [the mother], confirming the length of our relationship.”

[bold emphasis added]

Annexure A (so far as relevant):

“July 7^th 2004

… To whom it may concern

This is a letter to support my partners (sic)…application for a work permit under the “de facto” category.

[The father] and I have been in a stable and genuine relationship, since June 2003.

Presently, and since March 2004, we have been living together fulltime in a de facto relationship, at the address above.

We have a child together [S].  She was born [in a New Zealand hospital in March 2004].

…”  [bold emphasis added]

1. The mother, who appeared in person, referred to the following as constituting her evidence that the father and the mother were not living together as husband and wife at the time the child was born.

   ·Her affidavit filed 2 September 2005, par 1:

   Par 1

   “1       I…stated in form 2a that [the father] and I were never in a de facto relationship.  However for the sake of the child we agreed to do so at a later date.  It is very clear that [the father] is not a legal guardian. 

   Please see attached statements:

   [Independent Midwife] in facsimile form marked “A”

   [Mother’s friend] in facsimile form marked “B”

   [Maternal grandmother] in letter form marked “C”.”

   [bold emphasis added]

   ·The attached statements referred to as annexures A, B and C, which I will set out below.

2. Before setting out these statements, I should note that at the outset of the hearing the Solicitor for the Central Authority, when invited to make objections to evidence did not object to the admissibility of the three statements.  However, in later argument, the Solicitor for the Central Authority referred to their hearsay nature and that the statements were not sworn by their makers.

3. The solicitor for the Central Authority subsequently stated, during argument, that his instructions were that the Central Authority would make no submission against the weight to be given to the signed statements despite their hearsay nature and that they were not sworn by their makers; in particular would make no submission that the statements should be given diminished weight for those reasons; and that in all of the circumstances it would be appropriate, in this particular case, that I give the signed statements the same weight “as if sworn”.

4. It is necessary to explain that the Central Authority’s instructions were obtained and stated during argument after I had made two observations, first that historically the reason for not attributing weight to a signed but unsworn statement was that the maker of the statement could not be called for cross examination (the maker of the statement thus not being a deponent) but that, in Hague Convention cases, usually cross examination is not permitted in any event so that the rationale for not attributing weight was absent; and secondly that, if necessary, I would permit the mother, as a litigant in person, to have the weekend (the hearing being on a Friday) to have the statements sworn, and to file the affidavits on the following Monday morning. 

5. In this context, the mother had stated from the Bar table that she had telephoned a person at Crown Law whom she described as “[the solicitor for the Central Authority’s] secretary”, and had been told that there was no need to have the three statements sworn. 

6. In any event, as I have said, the solicitor for the Central Authority then obtained and stated his instructions, which I have set out.

7. In all of the circumstances, it is appropriate that I give to the three statements the same weight “as if sworn”.

8. I will now set out the three statements.

   The midwife

   “25 August 2005 

   To whom it may concern

   …I provided the midwifery care for [the mother] during the period July 2003 to May 2004.  I remember her being often very distraught from the ambivalence and lack of commitment shown her by [the father] and the emotional trauma she endured when he left to live [another city in New Zealand] in December 2003.  Fortunately, [the maternal grandmother] came over from Australia around the birth time and stayed for several weeks, providing the necessary support, as did [the mother’s] women friends.  Although [the father] did come back…for the birth, he was seldom present in a supportive role in those early weeks.

   …”  [bold emphasis added]

   The friend

   “25^th August, 2005.

   To whom this may concern;

   …I am a Photographer & I became friends with [the mother] on a Television Production course in July, 2003.  [The mother] fell pregnant whilst on the course, & turned to me for a little council, as she had only been seeing the man for a short while.  I am a mother of three & as [the mother] had not had any children, I simply spoke of the joy in which they had bought to my life.  [The mother] had always wanted children, however was not sure if she wanted to raise a child alone & decided to sit & speak with her boyfriend…to see how he felt & what he would like to do.  She was very relieved & happy when we met up after the conversation that took place.  He had told her that he would stand with her & support her.  That he was looking forward to having a child.  [The mother] was very relaxed after this, settling in to her pregnancy very nicely.

   As time went by, I noticed how [the father] was never around.  As  [the mother] became more pregnant, [the father] became less.

   [The mother] & I became very close friends & it was not very nice to see her being neglected in such a callous manner.  She spent a lot of time with my family, as [the father] simply seemed to have excuse after excuse as in “why” he was so unavailable.

   Mid pregnancy he announced to [the mother] that he was shifting to [another city in New Zealand] for work.  [The mother] was very upset about this decision, however she supported [the father] in his endeavours, & trusted that he was a man of his word.

   In the months that followed, [the father] made little contact.  Luckily [the mother] had a network of friends to assist her, for all of her family lived elsewhere.  I contacted [the father] personally once, after speaking with [the mother].  She had asked him if he could at least send her a text once a week in which he had replied “I cannot afford to.”

   As a text only cost around 20 cents in New Zealand, I felt that [the father] was not being honest with [the mother.  I text him & personally asked him to please text [the mother] just once a week.  I asked him if he still wanted to follow through with what had committed to.  He replied, I love [the mother] & look forward to my baby being born.  Yes…I am very committed.

   After this, [the father] remained absent.  His calls were infrequent.  His words were loving & colourful, yet there was never any actions through the entire pregnancy that I saw, which backed them up.  Sadly [the father] simply built [the mother] up on a wall of what became broken promises.

   When it was near to the time for the child to be born, [the maternal grandmother] flew in from Australia.  The family was aware of some of what the situation was & wanted to ensure the [the mother] had the love & support that is needed when bringing a child into this world.

   [The father] returned…for the birth.  I was present throughout the entire process & it was very clear that [the father] had a very limited & immature approach to the entire process.

   Everyone celebrated in the birth of [S].  [The father] was very proud of his new daughter.  Once the excitement settled though, it was once again [the mother’s] family & friends that were her primary support.  [The father] simply taking a backseat ride approach.

   Months went by after [S’s] birth.  [The maternal grandmother] had returned to Australia, playing tag with [the maternal grandfather].  [The mother’s] family were splendid.  A very loving & supportive family.

   They spoke with [the mother] & made it clear to her that if she was to raise [S] singularly, they would be there for her.  I spoke with both parents, & they both felt that [the father] was talking the talk, but not walking the walk.  I agreed with them.

   We had all hoped that [the father] would step up to the plate once [S] was born, as he has a pleasant nature.  This did not happen.

   …”  [bold emphasis added]

   The respondent’s mother (the maternal grandmother)

   “29^th August 2005 

   To whom it may concern

   …

   It was necessary for me to fly to New Zealand to care for and support [the mother], my stay was made longer as the birth had to be Caesarean.  I arrived 2 weeks before the birth.  [The father] was living [in another city in New Zealand] but returned for birth.  First time meeting him was at birth.

   …”  [bold emphasis added]

9. The Solicitor for the Central Authority, in argument, referred also to the mother’s Form 2A application filed 24 August 2005, under the heading “Additional Information To Form 2A”:

   “[The father] did return…two and a half weeks prior to me giving birth to [S].”

[bold emphasis added]

1. I then referred the Solicitor for the Central Authority to the following, eight lines further on in the same part of that document:

   “[The father] was not living with me at the time of [S’s] birth, and according to Section 6 of the guardianship act 1968, this fact doesn’t give him guardian rights …”

[bold emphasis added]

Approach to the evidence

1. In Panayotides and Panayotides (1997) FLC 92-733 (FC) at 83,897 the Full Court of the Family Court of Australia approved the approach, where there is conflict in the evidence in these summary proceedings, and where usually issues must be determined on the papers, 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.

2. In 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 said, as to the proper approach in resolving disputed matters of fact in Hague Convention matters:

   “20 The law is well settled.  In In re F (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.

   …”  [bold emphasis added]

The factors to be taken into account in respect of the matter in issue

1. In Director-General, Department of Families, Youth & Community Care v D (unreported), [1999] FamCA 118, 17 February 1999, Guest J at pp10-15 observed that the question whether a child’s parents were living together as husband and wife at the time the child was born is a question of fact; and referred to authorities relevant to the indicia of particular relationships for various legal purposes including “a relationship”, “a de facto relationship”, “a de facto marriage” and “cohabitation” (as relevant in the particular cases to which he referred).

1. In my view, however, for the purpose of the application of the New Zealand law to which I have referred, the first question is whether the parties were “living together” at all.  If they were, then and then only would the question arise whether the nature of their “living together” was or was not “as husband and wife”.  If they were not living together at all, in my view that is the end of the matter. That is to say, even though “living together as husband and wife” is a composite expression, and, on one view, a single concept, nonetheless it has two discrete elements to be satisfied before it will apply. 

2. Thus, in my view, authorities concerning the quite different questions of whether, in a particular case, parties have “a relationship”, or “a de facto relationship”, or “a de facto marriage” or are or have engaged in “cohabitation” may invite different tests.

3. For example, parties may be in “a de facto relationship”, or even be “married”, but not “living together” or “living together as husband and wife” at a particular time, which is a question of fact.

4. The expression “living together” was chosen by the New Zealand Parliament; and not any other of the variety of expressions which I have mentioned, all of which do not necessarily mean the same thing.

5. As a starting point, the expression “living together” would seem to carry the ordinary meaning of “sharing an abode”. 

6. In this context, nonetheless, the question whether parties were “living together” at a particular time is a broad question, not limited to “the moment of” the birth, or “the night or day of” the birth.  To my mind, the question is whether, in reality, the parties had a common abode, inviting the consideration of such factors as (1) whether the parties had a common residential address; (2) where the parties usually slept at night (for example, when not absent temporarily for holidays, employment or other reasons); and (3) where the parties usually kept their clothing, domestic and personal effects; regardless of the number of days or nights spent, perhaps, at another place. Thus, (as Guest J observed at p15) certainly it is relevant to look at the circumstances existing between the parties “both before and after the birth of the child”.

7. As will be seen, in the present case, I have decided that there are no grounds to reject the mother’s evidence that the father and the mother were not living together at all at the time the child was born, so that it is not necessary to consider whether (if they had been living together) that was as husband and wife.

8. Further, as will be seen, whilst it is common ground that the father and the mother lived together after the child’s birth, in this particular case that is a factually discrete occurrence and, in this particular case, has no bearing on the factual question whether they were living together at the time of the child’s birth.  That is to say, whilst as a matter of principle it is relevant to look at the circumstances existing between the parties “both before and after the child’s birth”, and I have done so, in this particular case, as in all cases, the facts must be considered as a whole to determine the question whether the father and the mother were living together at the time of the child’s birth.

My analysis of the evidence

1. I will now set out my analysis of the evidence:

   ·Par 2 of the father’s affidavit, second last sentence, is a bare statement.  In my view it purports to swear the issue without providing the type of information required to allow any proper assessment of the evidentiary value of the statement; and to that extent is unhelpful.

   ·Annexure C, pars 1 and 2, is relied upon by the Solicitor for the Central Authority, when those two paragraphs are read together, as a statement by the mother made on 12 January 2005 which is capable of carrying the meaning to a reader, and was intended to carry the meaning, or at least of implying, that the mother and the father lived together at all relevant times until September 2004, and thus is a statement by her, or at least an intended implication by her, that, therefore, they lived together at the time of the birth.  However, the fact remains that the statement does not say that; and in my view, thus, is simply silent on the matter in issue in these proceedings.  That is to say, whilst the inference or implication of intended meaning for which the Solicitor for the Central Authority contends may be available, there is no compelling reason to draw that inference or implication of intended meaning.

   ·Par 3 of the father’s affidavit filed 4 October 2005, and annexure A, are strongly relied upon by the Solicitor for the Central Authority as evidence which the Court “cannot get beyond” in respect of the issue, as a statement by the mother made on 7 July 2004 that the parties had been living together “since March 2004”, which, according to the submission of the Solicitor for the Central Authority, should be taken to include the date of the birth, 29 March 2004.  However, the mother’s case is clear that the parties commenced to live together after the birth; which, thus, may have been on 30 or 31 March 2004.  Certainly, the mother’s material (see, for example, the mother’s friend’s statement) refers to the circumstance that at and after the birth the father was “very proud of his new daughter”; that there was “excitement”; and in particular that the father had “returned…for the birth”.  In my view, however, it is quite possible that the pride and excitement then led to the circumstance that the father and the mother commenced to live together, that is, after the birth.  Indeed, the mother says (affidavit filed 2 September 2005, par 5) that the father had lived with another woman in another city in New Zealand, commencing on 25 February 2004 (one month before the birth) but that it had not worked out.

   ·In all of the circumstances, there are numerous explanations for the mother’s description in her statement made on 7 July 2004 of the parties’ cohabitation as being “since March 2004” as meaning “from the end of March 2004” (that is, after the birth), which meaning would be and is consistent with the mother’s evidence and that of the midwife, her own mother and her friend to which I have referred.  Thus, the mother’s statement made on 7 July 2004 does not seem to me, to be, necessarily, an admission that the cohabitation commenced in early March 2004 or before or on 29 March 2004.

   ·The meaning which the Solicitor for the Central Authority seeks to extract from the mother’s statement made on 7 July 2004 is inconsistent with a strong body of evidence (the mother’s, the midwife’s, the maternal grandmother’s and the mother’s friend) that in March 2004, before the birth, the father was living and working in another city in New Zealand, and returned only “for the birth”.  In particular, it appears that the mother, immediately before the birth, had been residing with her mother, the maternal grandmother; and that the father’s attendance at the birth, literally, had the character of his arriving back and going to the hospital for the birth.  See, for example, the maternal grandmother’s evidence, set out above:

   “ …  I arrived 2 weeks before the birth.  [The father] was living [in another city in New Zealand] but returned for birth.  First time meeting him was at birth.”

   [bold emphasis added]

   ·It is difficult to imagine that, if indeed the father and the mother had been living together in that two weeks, that is, before and leading up to the birth, the maternal grandmother would not have met him until “at [the] birth”.

   ·In passing, I note that par 3 of the father’s affidavit refers also to annexure B, which comprises statements in relation to a joint bank account of the parties.  However, even a cursory glance at them shows that the account was opened on 27 April 2004 (showing the “opening balance” as at that date); and an electricity invoice in their joint names dated 11 May 2004 which refers to a “balance” as at 14 April 2004 “since previous account” and is thus not otherwise helpful as to the “start date” of the shared account or shared residence.

   ·In all of the circumstances I am not able to accede to the submission of the Solicitor for the Central Authority that the Court “cannot get beyond” the mother’s statement made on 7 July 2004, annexure A.

   ·Par 1, mother’s affidavit filed 2 September 2005, is also bare, in that she seems to swear the issue by the bald statement that the cohabitation commenced “at a later date.”  However, unlike the father’s bald statement, the mother’s statement expressly is supported by the three attached statements by her words “Please see attached statements” which, in my view, go on to provide the type of information required to assess the evidentiary value of the mother’s statement.

   ·The three statements, discretely, provide candid, clear and independently made observations as to the matters in the mother’s sworn evidence; and collectively provide an objective framework from which it is impossible to conclude that the mother and the father were living together “at the time the child was born” or, indeed, in the period leading up to the birth.  In this regard, the parts of the statements emphasised in bold (which I need not set out again) in my view provide a strongly coherent and persuasive body of evidence that the father and the mother were not living together “at the time the child was born”.  I will however refer to two parts of this evidence.  First, there is the maternal grandmother’s statement, which I have set out above, and the observations I have made in respect of it, that despite her being in New Zealand with the mother for two weeks before the birth, she did not meet the father until the birth.  Secondly, I would refer to the mother’s friend’s statement, in the parts which state:

   “Mid pregnancy [the father] announced to [the mother] that he was shifting to [another city in New Zealand] for work.

   …

   In the months that followed, [the father] made little contact. …

   After this, [the father] remained absent. …”

   ·The Solicitor for the Central Authority relied upon the mother’s friend’s statement (at about the same part) wherein she states that she sent a text message to the father and “personally asked him to please text [the mother] just once a week”; and a further text message from her to the father asking if he “still wanted to follow through with what [he] had committed to”, the father’s text message back to her [to the mother’s friend]:

   “ … I love [the mother] & look forward to my baby being born.  Yes…I am very committed.”

   ·However, as I have observed, the very next paragraph in the mother’s friend’s statement provides:

   “After this, [the father] remained absent. …”

   ·The Solicitor for the Central Authority relied also upon the mother’s statement in her Form 2A application (set out above) that the father returned “two and a half weeks” prior to the birth, as an indication that the parties were living together at the time the child was born.

   ·However, as I have already observed above, eight lines down in the same document, and at the same part, the mother stated that she and the father were not living together at the time of the child’s birth.

   ·Thus, in my view, there is no internally inconsistent statement by the mother in her Form 2A application.  Read collectively, the mother has stated quite simply two things, namely (1) the father returned two and a half weeks before the birth but (2) they were not living together.

   ·The veracity of her evidence is I think borne out by the maternal grandmother’s statement that, although she was, in effect, with the mother for the two weeks preceding the birth, she did not meet the father until the birth.  Thus, the mother may well have had information that the father had returned two and a half weeks before the birth, but, despite that circumstance did not present himself until the birth.

Conclusion

1. The father’s case, it seems to me, rests upon a sworn statement by him purporting to “swear the issue”, supported by documents which do not corroborate his sworn statement, as I have explained.

2. The mother’s case similarly rests upon a sworn statement purporting to “swear the issue”.  However, in my view, it is strongly supported by the three statements annexed to her affidavit, as I have explained.

3. It is true that some of the matters in the mother’s three supporting statements are hearsay.  However, there is sufficient non hearsay evidence in them to be generally supportive of the mother’s sworn statement that the father and the mother were not living together at the time of the birth to ignore the hearsay contained in those statements, which I have done.

4. In all of the circumstances, after considering the proper approach to the matter set out in Panayotides and in In re F, and having regard to the circumstance that the onus of proof is on the Central Authority on the issue, I conclude not only that the father’s evidence is so unreliable that I am entitled to reject it; but also that, as there are no grounds to reject the written evidence of the mother, the Central Authority has failed to establish its case.

5. The application is dismissed.

6. I would reiterate that, if the Central Authority, by its Solicitor, had not clearly stated the instructions to which I have referred to the effect that I should not give diminished weight to the three unsworn statements annexed to the mother’s affidavit then, as I have indicated, I would have allowed the mother until the following Monday to have the three statements sworn.  In these circumstances, it would be untenable for the Crown, as a model litigant, subsequently to resile from its stated position; and, indeed, procedurally is estopped from so doing.

I certify that the preceding 48 paragraphs

are a true copy of the Reasons for Judgment

of The Honourable Justice O’Reilly

Associate

Date:   22 November 2005