Director-General, Department of Child Safety, Youth and Women and Ponsford (No 2)

[2018] FamCA 915

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & PONSFORD (NO 2) [2018] FamCA 915

CHILD ABDUCTION – Hague Convention – Application for the return of a nine year old child to New Zealand – whether habitual residence in New Zealand is established – whether the child objects to being returned to New Zealand – whether the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes – Order for return made.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Care of Children Act 2004 (NZ)

De L v Director General, Department of Community Services (NSW) (1996) 187 CLR 640
Harries v Harries (2011) 45 Fam LR 598
HZ v State Central Authority (2006) FLC 93-264
LK v Director-General, Department of Community Services (2009) 237 CLR 582
State Central Authority v DB [2002] FamCA 804

APPLICANT: Director-General, Department of Child Safety, Youth and Women

RESPONDENT: Mr Ponsford

FILE NUMBER: BRC 10257 of 2018

DATE DELIVERED: 9 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 2 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steel

SOLICITOR FOR THE APPLICANT: McInnes Wilson Lawyers

COUNSEL FOR THE RESPONDENT: Ms Oakley

SOLICITOR FOR THE RESPONDENT: Michael Stockall Solicitor

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous Orders are discharged.

2. The child, X, a male, born … 2009 be returned to New Zealand.

3. To give effect to Order 2:

   (a)the said child leave the Commonwealth of Australia on or before 23 November 2018;  and

   (b)the said child arrive in New Zealand on or before 24 November 2018; and

   (c)pending the child returning to New Zealand, the Respondent Father, Mr Ponsford, born … 1973, is restrained and an injunction is hereby issued, restraining him from removing or attempting to remove the child from the Commonwealth of Australia; and

   (d)pending the child returning to New Zealand, the Respondent Father, Mr Ponsford, born … 1973, is restrained and an injunction is hereby issued restraining him from removing or attempting to remove the child from the premises where he and the child are currently residing, namely: B Street, Suburb C in the State of Queensland; and

   (e)subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all federal agents of the Australian Federal Police retain the names of the Respondent Father, Mr Ponsford, born … 1973 and the child, X, a male, born … 2009 on the Family Law Watchlist at all international departure points in Australia;  and

   (f)the names of the child and the Respondent be removed from the Family Law Watchlist by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Child Safety, Youth and Women advising of the travel arrangements made for the child to return to New Zealand from 12.00 am on the date nominated for the travel in the letter.

4. Ms K, Department of Child Safety, Youth and Women or her nominee be at liberty to release all current passports relating to the child for the purpose of the child’s return to New Zealand and to release the Respondent’s passport to him (or his nominee) upon request.

5. The Marshal of the Family Court of Australia 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 required and empowered to take all necessary steps to give effect to these Orders.

6. All other Applications are dismissed.

7. The Applicant has liberty to apply on short notice to seek any further orders necessary to allow him or officers of the Department of Child Safety, Youth and Women to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this Order and pursuant to the Central Authority’s obligation under Regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym DCSYW & Ponsford (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC10257 of 2018

Director-General, Department of Child Safety, Youth and Women

Applicant

And

Mr Ponsford

Respondent

REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 6 September 2018, the Director-General of the Department of Child Safety, Youth and Women, in his capacity as the State Central Authority under the Family Law Child Abduction Convention Regulations 1986 (Cth), applies for an order that nine year old X, born in Australia in 2009, be returned to New Zealand.

2. The Regulations under which this Application must be determined are made pursuant to s 111B[1] of the Family Law Act1975 (Cth). This provides that the Regulations may make provision, as is necessary or convenient, to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction. The Convention is set out in Schedule 1 to the Regulations. 

   [1] And, in so far as they make provision in relation to the rules of evidence which are to apply in proceedings under them, pursuant to s 111D of the Family Law Act 1975 (Cth).

3. The Convention provides a mechanism for the prompt return of wrongfully removed or retained children between contracting States. Australia and New Zealand are contracting States to the Convention. 

4. The Regulations are to be construed having regard to the Principles and Objects mentioned in the preamble to, and Article 1 of the Convention, and as recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is, ordinarily, that child’s country of habitual residence, and as recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial and administrative authorities (as the case may be) of Convention countries.[2] 

   [2] Regulation 1A(2) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

5. The purpose of the Convention was authoritatively explained by the majority of the High Court in De L v Director General, Department of Community Services (NSW)[3] wherein it was emphasised that the Convention is directed to the prompt return of children to the State of their habitual residence, where questions concerning their welfare and the merits of any dispute about where, and with whom, they should live can be determined; that is, applications like this one, made pursuant to the Regulations, are matters about forum, not about parenting per se. 

   [3](1996) 187 CLR 640.

6. The Court may, pursuant to the Regulations, make return orders or any other order it considers appropriate to give effect to the obligations imposed on the Australian Government by the Convention.[4] If certain prescribed matters are established, the Court is obliged to make a return order.[5]

   [4]Regulation 16(1) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

   [5]Regulation 16(1) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

Uncontentious matters

1. The requesting Applicant under the Convention, is X’s mother, Ms Ponsford. She was born in 1977 in New Zealand. The Respondent to the Application is X’s father, Mr Ponsford. He was born in 1973 in Australia.  It is accepted that X’s mother moved from New Zealand to live in Australia in about 2001. She and the Respondent married in F Town in 2006.

2. No issue is taken that the Application seeking a return order was filed within one year of X’s retention in Australia on 14 July 2018.[6] Further, it is accepted that, if X is found to have been habitually resident in New Zealand immediately before his retention in Australia on 14 July 2018:

   a)his mother had rights of custody in relation to  him under the law of New Zealand; [7] and

   b)his retention in Australia on 14 July 2018 was in breach of those rights; [8] and

   c)at that time, his mother was actually exercising the rights of custody, or would have exercised those rights, if he had not been retained. [9]

   [6] Regulation 16(1)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

   [7] Regulation 16(1A)(c) Family Law (Child Abduction Convention) Regulations 1986; by operation of the New Zealand legislation, that is, the Care of Children Act 2004 (NZ).

   [8] Regulation 16(1A)(d) Family Law (Child Abduction Convention) Regulations 1986.

   [9] Regulation 16(1A)(e) Family Law (Child Abduction Convention) Regulations 1986.

3. It follows that, if I am satisfied by the Applicant[10] that X was habitually resident in New Zealand immediately before he was retained in Australia by his father on 14 July 2018, his retention here was wrongful and, subject to subregulation 16(3), I must make an order for his return to New Zealand.[11]

   [10] Who has the onus of proof on the balance of probabilities.

   [11] Regulation 16(1), Family Law (Child Abduction Convention) Regulations1986 (Cth).

The issues

1. Whilst it is uncontroversial that the mother, the Respondent and X moved to live in New Zealand in July 2017, the nature of the move is in dispute:  the mother said it was in furtherance of an agreed and shared intention and/or purpose to move to live permanently in New Zealand, whilst the Respondent advances that it was a trial.

2. Given this difference, it is, perhaps, unsurprising that the Respondent does not agree that X was habitually resident in New Zealand immediately before the Respondent determined not to return him to that country. The Respondent contends that he was, in fact, habitually resident in Australia at that time. If this contention is accepted, the Application must be dismissed.

3. If, however, the Applicant discharges its onus and establishes that X was habitually resident in New Zealand immediately before his retention in Australia then, unless the Respondent persuades the Court of one of the matters prescribed in subregulation 16(3), an order for his return to New Zealand must be made. That is, if the Applicant establishes that X was habitually resident in New Zealand immediately before his retention in Australia on 14 July 2018, it will be necessary to consider whether, as contended for by the Respondent, he objects to being returned to New Zealand;[12] it may also be necessary to consider the exercise of the residual discretion afforded by subregulation 16(5) to refuse to make an order for X’s return to New Zealand.

   [12] An abridged reference at this stage to the matters prescribed in Regulation 16(3)(c) Family Law (Child Abduction Convention) Regulations1986 (Cth).

Where was X habitually resident at the relevant time? 

1. There is no issue that, upon his birth in Australia X was habitually resident in this country. The real issue is whether he remained so as at 14 July 2018, given that he moved with his parents to live in New Zealand in July 2017, or whether he was, immediately before 14 July 2018, habitually resident in New Zealand.

2. The meaning of “habitual residence” in the context of the Regulations was extensively and authoritatively discussed by the High Court in LK v Director General, Department of Community Services.[13] It is thus clearly established that the inquiry into habitual residence is “a broad factual inquiry”, intended to involve a search for the underlying reality of the connection between a child and a particular State. Such inquiry should take into account all relevant factors, including settled purpose (in the sense of whether there was a shared intention that the child live in a particular place with a sufficient degree of continuity to be properly described as settled, from the child’s perspective), the actual and intended length of stay in a State, the purpose of the stay, the past and present strength of ties to the State and to any other State, the degree of assimilation into the State (including living and schooling arrangements) and cultural, social and economic integration. It is also authoritatively established that the intentions of either parent and the issue of “settled purpose” are not to be given controlling weight in the determination of the answer to the question of fact of a child’s habitual residence at the relevant time.

   [13] (2009) 237 CLR 582.

3. X’s mother was cross-examined by Counsel for the Respondent. The Respondent was not required for cross-examination by the Applicant. That this was the case does not mean that his evidence was unchallenged: it clearly was, by evidence given by the mother, whom I found to be a credible witness and whose evidence I accept and prefer to that given by the Respondent (where their evidence diverges) unless I indicate to the contrary. I do so for reasons which will become apparent.

4. The mother and the Respondent do not really disagree that, when they moved to live in New Zealand with X in July 2017, they sold furniture, rented out the former matrimonial home at G Town and caused their pets and a motor vehicle to be transported to that country. The mother was not challenged during cross-examination about her evidence that it cost the parties about $13,000.00 to move to live in New Zealand in July 2017. I accept her evidence in this respect. I note that the Respondent’s evidence includes that he and the mother were short of money at this time and I also accept the mother’s evidence to the effect that they borrowed money from her father to assist them to meet the costs of moving to New Zealand. As the mother was not challenged about her evidence about the quantity of personal belongings the parties took with them in July 2017 or the manner by which they transported the same, I accept this evidence. I also accept that the parties and X travelled to New Zealand in July 2017 using one way plane tickets.

5. However, I accept the submission made by Counsel for the Respondent to the effect that the matters referred to above, and the other matters relating to the family’s move to live in New Zealand, and the manner in which they lived there as a family unit between their arrival in July 2017 and July 2018 (when the father returned with X to Australia) are not inconsistent with the Respondent’s contention that the move to New Zealand occurred on the basis that it was, in effect, a trial and that the parents had agreed that, if it did not work out, they would return to Australia: contentions about which the mother disagrees, as she said that, when they left Australia in July 2017, they did so on the basis that they were moving permanently to live in New Zealand.

6. I accept that, before they moved to live in New Zealand in July 2017, the mother and the Respondent had considered moving from G Town to live in other locations in Australia, including Tasmania. I accept that, as they knew no-one in Tasmania, they agreed to move to New Zealand, where the mother had family.

7. I do not accept that the fact that the parties did not sell their former shared home in G Town is determinative of the issue about whether they had agreed, before relocating to New Zealand in July 2017, that that move was to be a permanent one or a conditional one, attended always by the possibility of a return to Australia.

8. The Respondent said that the parties had a discussion at the front gate of their G Town property before they moved to live in New Zealand. He said that he remembered telling the mother that, when they moved to New Zealand, they would still have the G Town house and, if they could not find jobs in New Zealand or it did not work out, they would always have the G Town house to come back to, as well as a motor vehicle. He said she responded by telling him that they were not selling all their “stuff” and moving to New Zealand for a little while and that he then responded by saying that there was no way they would be staying in New Zealand permanently. The mother said, in her affidavit and during her cross-examination, that she did not recall this conversation. I accept that she was being truthful in her evidence.

9. Given that the mother did not positively dispute the conversation or its asserted terms, it might be thought that I should simply accept the Respondent’s evidence that it occurred and that it occurred in the terms he described. If accepted as having occurred and as having occurred in the terms outlined by the Respondent, this would certainly provide a basis for a conclusion that the parties were not settled following their relocation to New Zealand and, more importantly, were not settled there immediately before the Respondent returned with X to Australia.

10. However, I have significant reservations about the Respondent’s veracity. I have arrived at this conclusion because his recounting of the alleged conversation carries with it the clear implication that the parties had always intended to retain the G Town property - yet the mother’s contention (that they had intended to sell it) is corroborated by the Listing Agreement for the sale of the property, dated 17 April 2017, into which they had entered. Further, the contents of his application to Suncorp Bank to vary the loan provided by that bank by removing the mother as a borrower for the loan secured by mortgage registered over the title to the G Town property, dated mid-August 2018, contains the assertion that he had been working for his current employers for three months, when it is uncontentious that he and X arrived back in Australia on 5 July 2018.

11. I am not, therefore, persuaded that the conversations deposed to by the Respondent in his evidence occurred in the terms that he contends they did. I accept the mother’s evidence about the circumstances which surrounded the decision to retain the former shared home in G Town when the parties moved to live in New Zealand in July 2017. That is, I accept that, whilst they had listed the property for sale before they moved to live in New Zealand in July 2017, it had not sold, as the property market had deteriorated. I accept that the potential that the price they might have obtained for it would not be sufficient to discharge their borrowings, secured by mortgage over it, resulted in them deciding to rent it out for six to twelve months in the hope that the market might improve.

12. I accept the mother’s evidence that, given the family’s financial situation, she would never have agreed to incur the expense of moving to live in New Zealand in July 2017 if such move was agreed to have been a temporary one, or one attended by the possibility of a return to Australia if it did not ‘work out’. I do not accept the Respondent’s contention that the parents’ plan to move to live with the maternal grandfather for a six month period was attended by the prospect that they might thereafter decide to return to Australia. Even if this was a possibility, it is clear that they had not made any such decision when he travelled with X to Australia in July 2018 for what I accept was held out to the mother to be a “visit” here.

13. I am not persuaded that the mother agreed to the family moving to live in New Zealand in July 2017 on the basis that such relocation was contingent on them liking living in that country or it working out. I think it much more likely than not that, when the family moved to live in New Zealand in July 2017, they did so on the basis that they were going to live in that country thereafter (or at least until they later jointly decided to relocate from there).

1. I accept that, following the family’s move to New Zealand in July 2017, X was enrolled in, and started to attend at, a local school from Term 3 of 2017.  I accept that he continued to attend that school until he travelled back to Australia with the Respondent in July 2018. I accept that the Respondent established a lawn care and home maintenance business, operated through a company which he registered in New Zealand on about 16 August 2017. I accept that the mother worked in the job she had obtained before the family left Australia in July 2017. I consider that the family assimilated itself into the community between July 2017 and July 2018. I accept as likely that X enjoyed school: I accept that the school at which he was enrolled in New Zealand reported that he had established good friends, with whom he enjoyed socialising and playing games in his free time at school. I also accept as likely that, generally speaking, X enjoyed living on the farm with his parents.

2. I accept that, after X’s parents decided at the end of June 2018 that they were going to separate, they told X of this decision. On the Respondent’s evidence, when X told them that, if his father was going back to Australia, he wanted to return to Australia also, the mother told him that she needed him “here” (in New Zealand).

3. On the father’s evidence, he later told X that, if his mother knew that he did not want to return to New Zealand after travelling to Australia, she would stop him leaving New Zealand: that is, it is clear from the father’s own evidence that he knew that the mother would not have agreed to X leaving New Zealand in July 2018 if he had told her that their child was not returning to that country but would be remaining in Australia; it is also clear that he enjoined X in keeping the nature of his travel to Australia in July 2018 a secret from his mother – a fact which must, in my view, impact on the assessment of X’s expressed views and wishes when interviews by Ms J, the Family Consultant who prepared a report to assist the Court to determine those matters prescribed in Regulation 16(3)(c). Such assessment must also, in my view, take into account that, according to the father, X’s comment about where he wanted to live was apparently connected with his father’s location.

4. I accept the mother’s evidence that she agreed to X travelling to Australia from New Zealand on 5 July 2018 on the basis that such travel was for a holiday only and that, as was reflected in the return tickets she booked using the paternal grandmother’s credit card details, X and his father would be returning to New Zealand on 14 July 2018. I accept her evidence during cross-examination that the parents had agreed X would be back in New Zealand for his birthday (24 July) and that the father had led her to believe that, having accompanied X back to New Zealand at the proposed end of their trip and having spent his son’s birthday with him in New Zealand, he would then return to Australia again. I consider that the father’s evidence corroborates the mother’s in this respect, given that he said that, when X realised he (the Respondent) was “going back to Australia for a visit” (my emphasis), he “sought to come too”.[14]

   [14] Respondent’s affidavit filed 12 October 2018, paragraph 46.

5. I accept the mother’s evidence to the effect that the preparations for X’s birthday celebrations in New Zealand continued up until the day he left to travel to Australia.

Conclusions about the issue of X’s habitual residence

1. I am persuaded that, when they moved to New Zealand in mid-2017, X’s parents did so with a shared intention that they and X were going to live in that country thereafter.

2. I consider that, when regard is had to the evidence outlined above, the underlying reality for X is that, immediately before his departure from New Zealand with his father in July 2018 to return to Australia for the “visit” his father described in his evidence, he was settled in New Zealand: he had lived there continuously between July 2017 and July 2018; he had been enrolled in and attended school there since arriving in New Zealand in mid-July 2017; he had settled into living with his maternal grandfather on the farm and he was integrated into the environment in which he was living; his parents had both engaged themselves in the community, in that his mother had obtained employment and his father had attempted to establish his own business.

3. I am not persuaded by the fact that the family was living with the maternal grandfather on the farm that they were not settled in New Zealand or that this was an indicia of a shared intention that they would always return to Australia at some stage. I accept the mother’s evidence that she and the Respondent planned to live with her father for a short period of time when they arrived in New Zealand, but their financial situation was then such that they could not afford to pay rent somewhere else or buy their own property.

4. I consider that the Respondent fully appreciated the mother’s position about the terms on which X was leaving New Zealand to travel to Australia: as outlined above, his evidence is that he told X not to tell his mother that he would not be returning to New Zealand because she would not let him travel to Australia if she knew that he was not coming back. His own description of their return to Australia uses the term “visit”.

Consequences of the finding that X was habitually resident in New Zealand at the relevant time

1. I am satisfied that the Applicant has discharged the onus of establishing those matters required by it to be established.  It follows that I am persuaded that the Applicant has satisfied the Court that X’s retention in Australia after 14 July 2018 was wrongful under the Regulations.[15] 

   [15] Regulation 16(1)(c) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

2. Given this conclusion, and the conclusion that the other statutory prerequisites have been satisfied, I am compelled to make an order for X’s return to New Zealand unless the Respondent establishes an exception particularised in Regulation 16(3) of the Regulations. 

3. If the Respondent establishes an exception, then, and only then may the Court consider not making an order for X’s return to New Zealand.[16] Even if this discretion is enlivened, the Court is not precluded from making a return order only because the Respondent has established a matter mentioned in the Regulations,[17] but may exercise the discretion to decline to order X’s return to New Zealand. 

   [16] Regulation 16(3) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

   [17] Regulation 16(5) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

What must the Respondent establish and does the evidence establish it?

1. The Respondent seeks to establish that X objects to being returned to New Zealand.[18]  In order to establish this exception, the Respondent must establish that X objects to being returned to New Zealand and that his objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes, and that he has attained an age and a degree of maturity at which it is appropriate to take account of his views. 

   [18] Regulation 16(3)(c) Family Law (Child Abduction Convention) Regulations1986 (Cth).

2. Nine year old X was interviewed by Ms J, a Family Consultant on 17 October 2018. She reported that he said he would feel “sad” if the Court said he had to go back to New Zealand; that he said he did not want to go back there because “I don’t really like New Zealand”; he also said he did not want to go back to living on the farm and that the hardest thing would be leaving his father: he did not know whether his father would also go to New Zealand if he returned there. He agreed that his mother would like it if he went back to New Zealand; when asked if there would be anything good about this, he said “no, not really”. He said he would not mind visiting New Zealand on holidays, but he wanted to know that he would return to Australia: he said that his one wish was to stay in Australia.

3. Ms J considered that X’s objection to returning to New Zealand appeared based around the anticipated loss of various aspects of his life (for example, social losses, his connection to his paternal grandparents, to his animals and lifestyle and, also, his concern about being separated from his father).  He also appeared to be dissatisfied (at least ostensibly) to having to work on the farm and being away from the town. I accept her assessment in this regard.

4. Whilst Ms J considered that X’s objection reflected some strength of feeling beyond a mere expression of a preference, she also thought this more likely associated with these anticipated losses than dissatisfaction with New Zealand.  Again, I accept her assessment in this respect. Ms J also thought that X being returned to New Zealand might have some impact on his current sense of self and identity and opined that the loss would likely be greater if his father did not return to New Zealand.

5. Whilst the Respondent was concerned X would not cope emotionally with returning to New Zealand, he ultimately conceded that, ultimately, the child would be okay, but would remain sad. 

6. Ms J assessed X as appearing to be fairly resilient: she said that, whilst there may be a significant loss for him if he returns to New Zealand, he would likely process this and eventually adjust, with appropriate support.  She assessed his ability to cope emotionally with the loss as a moderate risk factor, the mitigation of which was somewhat dependent on the quality of his relationship and supports in New Zealand to assist him to process his emotions.

7. Ms J assessed X at the “middle childhood developmental stage” where children tend to focus on the “here and now” as opposed to having the capacity to engage in abstract thinking, complex planning or hypothetical thinking.  She assessed X as presenting as an average nine year old child: she did not think him significantly advanced for his age. She said he expressed his concerns and feelings about returning to New Zealand in a way that was consistent with an average nine year old child.  I accept her assessment of him and his functioning.

8. I accept Ms J’s opinion that, given the expected limits in X’s overall maturity (given his developmental stage and, particularly, what she identified as his attendant limited capacity to understand the broader, more complex issues relating to the matter) and his limited ability to engage in longer term planning and contemplation, limited weight ought to be placed on his expressed views.

9. I hold some residual doubts about whether X in fact objects to being returned to New Zealand, as opposed to being separated from his father.  If I am wrong in this, then his objection to returning to New Zealand as voiced is, in my view, no more than an assertion of preference or wish; I am not persuaded that it demonstrates the strength of feeling beyond a mere expression of a preference, or an ordinary wish.

10. I accept completely the submission by Counsel for the Respondent to the effect that I should not proceed on the basis that, simply because of his age, X’s views should not be considered in some way. However, given Ms J’s evidence (which I accept) about his developmental stage and associated limited capacities, I am not persuaded that he has attained an age and/or has a degree of maturity at which it is appropriate to take his views into account, other than to note the comments he is reported by Ms J to have made to her.

11. For the reasons expressed, I am not persuaded that the Respondent has established this exception to the mandatory return of X to New Zealand. 

12. It follows that I am mandated by the Regulations to order the return of X to New Zealand.

Exercise of discretion[19]

[19] De L v Director General, Department of Community Services (NSW) (1996) 187 CLR 640 at 661; State Central Authority v DB [2002] FamCA 804, per Kay J; HZ v State Central Authority (2006) FLC 93-264; Harries v Harries (2011) 45 Fam LR 598.

1. As noted earlier, the Court is only called on to consider the exercise of discretion in favour of refusing to make an order for the return of children if a Respondent establishes an exception under the Regulations. 

2. In case I am wrong in the conclusions I have reached to the effect that the Respondent has failed to establish the exception sought to be established, had I been called upon to exercise the discretion, I would not have been persuaded to refuse to order the return of X to New Zealand. 

3. I have reached this conclusion because I consider that: 

   a)the mother did not consent to X returning to live in this country on a permanent basis at any time before he travelled from New Zealand to Australia with his father in July 2018 for what his father described as “a visit”; and

   b)the mother proactively sought X’s return to New Zealand; and

   c)the father’s own evidence establishes that he knew that the mother would not have agreed to him removing X from New Zealand unless he led her to believe they were only travelling to Australia for a holiday “visit”; and

   d)X and his parents had lived in New Zealand since their move there in July 2017, with the likely consequence being that he has relationships there at school and with his maternal grandfather; and

   e)X will return to known environs in New Zealand; and

   f)there is nothing in the evidence to suggest that the Respondent will be unable to instigate proceedings for appropriate parenting orders in New Zealand (including orders which would permit of X’s relocation to Australia), as he could obviously have done before deciding simply to travel to Australia with X, after the parental separation, under the pretence of having a “visit” to this country; and

   g)given the Respondent’s evidence that he knew that the mother would not have agreed to X leaving New Zealand to return to Australia if he had told her of his intention to retain their son here with him, his actions  amount to the type of behaviour the Convention is designed to prevent; and

   h)given the similarities in law between New Zealand and Australia, whatever determination is arrived at for X’s future parenting arrangements, it is one which will involve a determination of whatever future parenting arrangement is in his best interests; and

   i)the purpose and underlying philosophy of the Convention would, in my view, be significantly at risk of frustration if a return order were not made in the circumstances of this case. 

Final Conclusions

1. For the reasons outlined above, I am satisfied that a return order should be made. 

2. Ms Oakley for the Respondent submitted that the time for X’s return to New Zealand should be such as to allow his father to obtain a passport, so that he can accompany him on the return flight. She submitted, without the assistance of evidence to this effect, that the Respondent needed three weeks within which to obtain a replacement passport.

3. I am not persuaded that there should be undue delay in X’s return to New Zealand, especially given that the Regulations exist to implement Australia's agreement to the Convention, which provides for the prompt return of children to their place of habitual residence. 

4. I consider that the date particularised in the Orders set out at the commencement of these Reasons provides the Respondent with sufficient time to obtain a passport; if this is not the case, I am completely confident that appropriate arrangements will be made to facilitate X’s safe return to New Zealand. More importantly, I am also satisfied that requiring X to depart Australia by or on 23 November 2018 will afford him sufficient time to farewell his current classmates, other friends and family.

5. Given that the object of the Convention is to secure the prompt return of children, and that X was wrongfully retained in Australia on 14 July 2018 - with the associated disruption to his participation in the New Zealand education system (into which he was enrolled from Term 3 2017 until July 2018) and the consequence that he has been prevented from spending any in-person time with his mother at all since then - I consider he should be returned to New Zealand as soon as practicable. Such return will enable him to resume school there and recommence his in-person interactions with his mother.

6. For the reasons expressed above, the orders will be as set out at the commencement of these Reasons.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 9 November 2018.

Associate:     

Date:              9 November 2018