Director General, Department of Child Safety, Seniors and Disability Services & Hurston
[2023] FedCFamC1F 711
•22 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Director General, Department of Child Safety, Seniors and Disability Services & Hurston [2023] FedCFamC1F 711
File number(s): BRC 7768 of 2023 Judgment of: CAREW J Date of judgment: 22 August 2023 Catchwords: FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where applicant alleges that two children were wrongfully retained by the father in Australia and seeks their return to New Zealand – Where the father resists the making of a return order on the basis that the children will be exposed to a grave risk of physical or psychological harm – Where the Central Authority submits that the evidence does not attract a qualitative description of “grave”, given the active involvement of New Zealand Police and Oranga Tamariki and the mother’s history of engaging in protective behaviours toward the children – Where return order made on condition that the Central Authority provide a copy of the order and these reasons to Oranga Tamariki and to police in New Zealand Legislation: Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 1A, 2, 16, 26
Convention on the Civil Aspects of International Child Abduction
Cases cited: De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640
DP v Commonwealth Central Authority (2001) 206 CLR 401
Number of paragraphs: 43 Date of hearing: 21 August 2023 Place: Brisbane Solicitor for the applicant: McInnes Wilson Lawyers Counsel for the applicant: Mr J Selfridge For the respondent: Litigant in person ORDER
BRC 7768 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY, SENIORS AND DISABILITY SERVICES
Applicant
AND: MR HURSTON
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
22 AUGUST 2023
THE COURT ORDERS THAT:
1. All previous Orders are discharged.
2.The children, X born 2014 and Y born 2017 are to be returned to New Zealand (“the return Order”).
3. For the purposes of giving effect to the return Order:
(a)The children are to leave the Commonwealth of Australia on or before 19 September 2023.
(b)The children are to arrive in New Zealand on or before 20 September 2023.
(c)The requesting applicant mother, Ms B born 1995 is to pay all the necessary expenses associated with returning the children to New Zealand, including the cost of airfares and departure taxes (if any) for the children to travel from the City C Airport or Brisbane Airport to New Zealand.
(d)Pending the children returning to New Zealand, the respondent father, Mr Hurston born 1994, is to continue to be restrained and an injunction hereby issues, restraining him from removing or attempting to remove the children from the Commonwealth of Australia.
(e)Pending the children returning to New Zealand, the respondent father, Mr Hurston born 1994 is to be restrained and an injunction hereby issues restraining him from changing the children’s usual day to day residence from the premises where he and the children are currently residing namely, D Street, Suburb E in the State of Queensland, Australia.
(f)Subject to paragraph 3(f) of this Order, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police shall retain the names of the respondent father, Mr Hurston born 1994 and the children, X born 2014 and Y born 2017, on the Family Law Watch list at all international departure points in Australia.
(g)The names of the children, X born 2014 and Y born 2017, and the respondent father, Mr Hurston born 1994 shall be removed from the Family Law Watch list by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Child Safety, Seniors and Disability Services advising of the travel arrangements made for the children to return to New Zealand from 12.00am on the date nominated for the said travel in the letter.
(h)The Marshal of the Federal Circuit and Family Court of Australia Division 1 and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are directed to take all necessary steps to give effect to this Order.
(i)To facilitate the return of the children to New Zealand, Ms F, Senior Team Leader of Department of Child Safety, Seniors and Disability Services or her nominee shall be at liberty to release, all current passports relating to the children for the purpose of the children’s return to New Zealand; and release the respondent father’s passport to him or his nominee upon request.
(j)Liberty to apply is granted to the applicant to seek any further orders necessary to allow her or officers of the Department of Child Safety, Seniors and Disability Services to make such arrangements as are necessary to facilitate and ensure the return of the children in accordance with this Order and pursuant to the Central Authority’s obligation under regulation 20 of the Family Law (Children Abduction Convention) Regulations 1986 (Cth).
4.The applicant is to forthwith provide a copy of this Order, the Reasons for Judgment and the report of Ms G dated 8 August 2023, to the following authorities in New Zealand with a respectful request that they give consideration to taking any steps necessary to ensure the safety of the children upon their return to New Zealand:
(a)New Zealand Police; and
(b)Oranga Tamariki – Ministry for Children.
NOTATION
A.The requesting applicant mother, Ms B, has agreed to be responsible for all necessary expenses associated with the return of the children to New Zealand.
B.The mother and the father have agreed that upon the children’s return to New Zealand, and if they are living with the mother, the mother is to make the children available to speak to the father via FaceTime on Tuesday, Thursday and Sunday each week between 7:00 and 7:30 pm New Zealand time.
C.The Federal Circuit and Family Court of Australia (Division 2) should be informed that a return Order has been made.
FURTHER NOTATION
D.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
E.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Child Safety, Seniors and Disability Services & Hurston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
In late 2022, two children, X, now aged nine and Y, now aged six, entered Australia from New Zealand to live with their father for a temporary period. Prior to their arrival in Australia, the children had lived with their mother in New Zealand since early 2019 and had seen little of their father in the intervening period. On or about 7 February 2023, the father refused to return the children, citing his concerns for their safety if they were returned to the mother.
These proceedings concern an application for a return order[1] to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The Regulations provide the legislative framework pursuant to which Australia meets its obligations as a contracting state to the Convention on the Civil Aspects of International Child Abduction (“the Convention”).[2]
[1] As defined in regulation 2 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[2] [1987] ATS 2.
This is not a hearing about the merits of a ‘custody or access’ case (to use the terminology in the Convention), but a hearing to determine the appropriate response to Australia’s obligations under the Convention. Unlike parenting proceedings, the best interests of the children are not the paramount consideration.[3]
[3] De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640 at 658.
If the children have been wrongfully removed or retained, then a return order must be made unless the parent resisting the return order establishes an exception within reg 16(3) of the Regulations and I exercise my discretion not to make a return order (reg 16(5)).
THE CONVENTION
The purpose of the Convention is to ensure the prompt return of children who have been wrongfully removed from or retained in a convention country and to enable any dispute relating to the parenting of the children to be determined by the children’s country of habitual residence immediately prior to the wrongful removal or retention.[4]
[4] Ibid at 648–649.
The Regulations are intended to be construed:[5]
(a)Having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention;
(b)Recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and
(c)Recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.
[5] Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) reg 1A(2).
If an application for a return order is made within one year after the removal or retention of a child, and the removal or retention was wrongful within the meaning of the Regulations, the Court must, subject to certain exceptions, return the child to the convention country which was the child’s habitual residence immediately before the wrongful removal or retention (reg 16(1)).[6] Even where one of the exceptions under reg 16(3) is established, the Court retains a residual discretion to nevertheless make a return order (reg 16(5)).
[6] If the application is filed more than one year after the day on which the child was first removed to or retained in Australia the return order will still be made if certain conditions are established.
The responsible Central Authority (defined in reg 2) or Article 3 applicant (defined in reg 2) must satisfy the Court that the child’s removal to or retention in Australia was wrongful (reg 16(1)(c)). The removal or retention will be wrongful if the Court is satisfied of the following:[7]
(a)The child was under 16 years of age; and
(b)The child habitually resided in a convention country immediately before their removal to, or retention in, Australia; and
(c)The person, institution, or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before their removal to or retention in Australia; and
(d)The child’s removal to or retention in Australia is in breach of those rights of custody; and
(e)At the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights had the child not been removed or retained.
[7] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1A).
The person opposing the return bears the onus of establishing one of the exceptions set out in reg 16(3) of the Regulations,[8] which are as follows:
[8] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3); DP v Commonwealth Central Authority (2001) 206 CLR 401 at 408, [9], 416–417, [39]–[41].
(a)the person, institution or other body seeking the child's return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)each of the following applies:
(i)the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
Recent amendments to the Regulations give further emphasis to circumstances where a person who has wrongly removed or retained a child alleges that the return of a child under the Convention would result in the child being subject to, or exposed to, family violence.[9] The amendments add a note at the end of reg 16(3)(d) in the following terms:
Note 1: In considering whether the matter mentioned in paragraph (3)(b) is established:
(a)the court may have regard to any risk that the return of the child under the Convention would result in the child being subject to, or exposed to, family violence; and
(b)the court may have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention; and
(c)the court may have regard to the matters mentioned in paragraphs (a) and (b) of this note regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur.
[9] Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022 (Cth) which commenced operation on 10 December 2022.
BACKGROUND
By way of background, and as already noted, there are two children of the relationship, X born 2014 aged nine and Y born 2017 and aged six. Both children were born in Australia.
The mother and father commenced a relationship in 2008 when they were still in school in New Zealand. In 2009, they moved to City C, Australia with the maternal grandmother, Ms H. The parents lived in both Australia and New Zealand after that time before separating in 2018.
In 2019, the mother returned to live in New Zealand with the children and the father remained living in Australia. The father had very little contact with the children until the mother asked him to assist her in late 2022 by caring for the children to enable her, to use her words, “sort[ed] [her] life out”. It was to be a temporary arrangement.
The father is 29 years of age and works as a casual labourer. He is in a relationship with Ms J. The father and Ms J have been living together since 2020. The father currently lives with Ms J and the children at D Street, Suburb E in the State of Queensland.
The mother is 28 years of age and unemployed. The mother currently lives at K Street, Suburb L, City M in New Zealand.
Until at least March 2023, the mother was in a relationship with Mr N. The mother and Mr N have a child together, O, born 2021. The mother contends that she is no longer in a relationship with Mr N. However, Mr N visits O at the mother’s home. It is unclear on the evidence how often that occurs or the duration of such visits. This is a cause for concern as it is common ground that Mr N is a violent man and that X and Y have been exposed to family violence between the mother and Mr N.
Mr N has been convicted of assaulting the mother on two separate occasions and it appears from the records forming part of the evidence from New Zealand Police and from Oranga Tamariki – Ministry for Children (“Oranga Tamariki”) that the police have intervened on about 12 occasions as a result of family violence between the mother and Mr N.
The first incident resulting in Mr N’s conviction for assault appears to have occurred in late 2020, when he punched the mother several times and threw an object at her causing injury. A protection order was taken out against Mr N for the mother’s protection in early 2021. The second incident resulting in Mr N’s conviction for assault appears to have occurred in or about late 2021 while the mother had one of the children in her arms. Mr N hit the mother in the back of the head with an unknown object causing her to fall to the ground. The mother was knocked unconscious. The mother suffered a bump to the back of her head but did not require medical attention. It also appears that Mr N has been dealt with for breaching the terms of the protection order on a number of occasions.
The records also indicate the use of illicit drugs by the mother and Mr N. This information was provided to Police by Mr N’s mother, Ms P, in mid-2021, in circumstances where Mr N was reported to have been “out of control” and was being aggressive.
The mother has on occasions been resistant to intervention by Oranga Tamariki. In mid-2022, a report was made to Oranga Tamariki as a result of the child, Y, presenting to school with a bruise near her eye. Y said that her mother punched her in the face. Both children disclosed physical abuse by the mother when interviewed by child safety officers. When the mother was contacted by child safety officers, she was incensed that the children had been interviewed without her consent and that their allegations had been believed. The mother denies all allegations of physical harm although she concedes smacking the children on occasion but not so as to cause injury. The children were placed into the mother’s sister’s care for a short time while an investigation was undertaken. Y later said she could not remember how she acquired the bruise and X described what was described as “low level” physical smacks. The police issued the mother with a warning and the children were returned to her care.
In late 2022, the mother travelled to Australia with X and O. Y’s passport had expired so she did not accompany the mother. It seems that the mother was considering moving to Australia with the children at that time and that this trip was for the purpose of investigating options. It is unclear where Y was while the mother was in Australia. The involvement by Oranga Tamariki discontinued at that time because the mother had left New Zealand in accordance with what she had apparently told Oranga Tamariki was to be a relocation to Australia. The mother returned to New Zealand a few weeks later. Prior to her departure from Australia, the mother’s mother obtained a protection order against the mother. The mother denies being the aggressor in the incident that resulted in the protection order.
At some point it seems that a safety plan was instigated by Oranga Tamariki which involved the mother and children living with Mr N’s parents.
In late 2022, police intervened again in a family violence incident between the mother and Mr N. The mother had sent a text message to her sister alleging that Mr N was going to stab her. The mother left the residence and found alternative temporary accommodation. It was at this time the mother sought assistance from the father, by caring for X and Y, and the father readily agreed. It is unfortunate that the trust between the parents has now apparently broken down. It can only be hoped that they will be able to realise that each of them just want what is best for their children.
The records from Oranga Tamariki report a notification in late 2022 that the mother’s mental health issues were impacting on her ability to care for the children. The mother denies any mental health issues.
The mother also denies any continuing drug use and has produced a hair follicle test dated July 2023 indicating negative results for the drugs for which she was tested.
In early 2023, Ms J, became concerned that Y may have been the victim of sexual abuse as a result of her “wak[ing] up in the middle of the night holding her vagina and crying hysterically”, and when the father tried to calm her, “she would climb into the cupboard”. The mother denies any knowledge of the possible sexual abuse of the child and suggests that Ms J may be projecting what Ms J says is her own experience of childhood sexual abuse onto the child.
On or about 7 February 2023, the father refused to return the children.
The mother signed an application for the return of the children under the Convention on 21 February 2023.
On 19 June 2023, an application under the Convention was filed in the Federal Circuit and Family Court of Australia (Division 2) and transferred to this Court on the same day. It is unclear when the mother’s application was received in Australia but there was a delay of nearly four months from the time the mother signed the application in New Zealand to the filing of the application in Australia by the Central Authority.
The father commenced parenting proceedings in the Federal Circuit and Family Court of Australia (Division 2) on 6 April 2023 and those proceedings were stayed on 30 May 2023 pending the determination of the application for a return order.
It seems that the father was initially contending that the children objected to returning to New Zealand. Despite the very young age of the children, a report was ordered to be prepared by a family consultant pursuant to reg 26 of the Regulations as to the following matters:
(a)Whether the children object to being returned to New Zealand;
(b)Whether any objection by the children to being returned to New Zealand shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes; and
(c)Whether the children have attained an age and degree of maturity at which it is appropriate to take account of their views.
A report was prepared at the expense of the Australian taxpayer and, given the nature of the proceedings, accorded priority over other matters in the Court.
The report is dated 8 August 2023 and was received into evidence and marked exhibit 1. Unsurprisingly, given the children’s ages and stages of development, it could not be found that the children object to returning to New Zealand in the sense required by reg 26.
The report nevertheless provides some information that may be helpful to the appropriate authorities in New Zealand charged with protecting the children, if a return order is made. In particular, Y disclosed that Mr N was “mean” to the mother and that he “hurt her”. Y said that during such incidents she and X would run into their bedroom with baby O and would cry. X disclosed that Mr N “hits mum a lot” and that at such times he would take his baby sister out of the house and they would go to a neighbour’s house for help. X also disclosed that on one occasion Mr N had become angry with X and hit him with a stick.
Despite the father and the mother having attended a mediation and a dispute resolution notice indicating agreement on some issues, the Central Authority seemed unsure what if any agreement had been reached. As the mother is not their client, but rather the Central Authority in New Zealand, that may be understandable but not helpful to the Court. I note that the mother observed the proceedings via video link. After taking the opportunity to take further instructions, I was informed by counsel for the Central Authority that the mother had agreed to be responsible for the costs of the children returning to New Zealand and the parents had reached some agreement about the father’s communication with the children if a return order were made and if the children were living with the mother.
DISCUSSION
Turning then to consider the particular issues arising in this case. It is common ground that the Central Authority in Australia (represented in these proceedings by the duly appointed Director-General, Department of Child Safety, Seniors and Disability Services (Qld)) has established that, for the purposes of reg 16(1), the children were wrongfully retained in Australia on or about 7 February 2023. Accordingly, unless the father establishes an exemption, a return order must be made.
The father solely relies upon an exemption to a return order based on reg 16(3)(b), namely that there is a grave risk that the return of the children under the Convention would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation.
In DP v Commonwealth Central Authority,[10] the High Court of Australia said:
[10] DP v Commonwealth Central Authority (2001) 206 CLR 401 at 417–418, [41]–[45].
41. ... On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
42. Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
43. Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
44. These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
45. That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
…
(Footnotes omitted)
It is conceded by the Central Authority that the evidence establishes a risk that a return order would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation but submits that the risk does not attract the qualitative description “grave” for the following reasons:
(a)There is a protection order in place against Mr N; and
(b)Oranga Tamariki have indicated through the evidence of Ms Q (referring to the evidence of Ms R, a care and protection social worker) that if they were aware that the children were returned to New Zealand Oranga Tamariki would “complete a new report of concern. This would effectively re-open a case for these children”. If that were to occur, Ms R said that a thorough investigation and assessment would be conducted; and
(c)The mother has historically taken steps to protect the children including by sending them to the father in Australia.
Unfortunately, as Mr N has repeatedly breached the protection order, the mother and children have been subjected to and/or exposed to further family violence despite the existence of that order. The evidence that Oranga Tamariki would recommence an investigation as to the safety of the children if they are returned to New Zealand is of some significance in assessing the magnitude of the risk. It is also of some significance that the mother has acted protectively in the past, albeit in regards to Mr N only and not herself and albeit belatedly. As to the mother’s drug use, the evidence does not support the mother’s current use of illicit substances, at least up to July 2023 and at least for the substances for which she was tested. Unfortunately, while the mother has sought assistance from her sister and from the father in the past, those bridges may now have been burned.
It remains of concern that Mr N continues to visit the mother and spend time with O with seemingly no other person present to provide protection. However, given the evidence from Oranga Tamariki, I remain unpersuaded that the risk to the children is grave.
As the father has failed to establish an exemption, a return order will be made in the terms sought by the Central Authority together with the notations agreed to by the parents of the children.
To ensure that Oranga Tamariki is aware of the return order I will require the Central Authority to provide them with a copy of the order and these reasons. It may also be of assistance for Ms G’s report to be made available. Given the nature of the violence perpetrated against the mother by Mr N I will also require the same documents to be provided to police in New Zealand.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 22 August 2023
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