Director-General, Department of Communities, Child Safety and Disability Services and Louse (No. 2)

[2014] FamCA 794

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & LOUSE (NO. 2) [2014] FamCA 794

FAMILY LAW – CHILD ABDUCTION – Hague convention – Whether the child should be returned to New Zealand – Court finds that the mother was exercising her rights of custody at the time the child was retained by the father in Australia– Court finds that the retention of the child in Australia is wrongful – Orders are made that the child be returned to New Zealand.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPLICANT: Director-General, Department of Communities, Child Safety and Disability Services

RESPONDENT: Mr Louse

FILE NUMBER: BRC 6511 of 2014

DATE DELIVERED: 29 August 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 29 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGregor of Counsel

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: Mr Jordan of Counsel

SOLICITOR FOR THE RESPONDENT: DA Family Lawyers

Orders

(1)The child, B born … 2006 be returned to New Zealand and for the purposes of giving effect to this order:

(a)The said child leave the Commonwealth of Australia on or before 12 October 2014;

(b)The said child arrives in New Zealand on or before 12 October 2014.

(c)Pending the child, B born … 2006, returning to New Zealand, the Respondent Father, Mr Louse born … 1976, continue to be restrained and an injunction is hereby issued restraining him from removing or attempting to remove the said child from the Commonwealth of Australia;

(d)Pending the return of the child, B born … 2006, to New Zealand, the Respondent Father, Mr Louse born … 1976, continue to be restrained and an injunction is hereby issued restraining him from changing the residence of the child, B born … 2006, from the premises where he and the said child are currently residing, namely … C Street, D Town, Queensland

(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 Louse born … 1976  and the child, B born … 2006, on the Family Law Watch list at all international departure points in Australia;

(f)The child, B born … 2006, and the respondent father, Mr Louse born … 1976, 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 Communities, Child Safety and Disability Services advising of the travel arrangements made for the said child to return to New Zealand from 12.00 am on the date nominated for the said travel in the letter;

(g)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;

(h)To facilitate the return of the child, B born … 2006, to New Zealand, Ms T, Department of Communities, Child Safety and Disability Services or her nominee be at liberty to release all current passports relating to the child for the purposes of the said child’s return to New Zealand, and release the Respondent Father’s passport to him or his nominee upon request.

(i)That liberty to apply be granted to the applicant to seek any further orders necessary to allow him or officers of the Department of Communities, Child Safety and Disability Services to make such arrangements as are necessary to facilitate and ensure the return of the child, B born … 2006, 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.

(2)That the Respondent Father, Mr Louse born … 1976, pay all the necessary expenses associated with returning the child to New Zealand, including the cost of airfares and departure taxes (if any) for the said child to travel from Brisbane International Airport to New Zealand.

(3)That all other applications be dismissed.

(4)That there be liberty to apply.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Louse (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6511 of 2014

Department of Communities, Child Safety and Disability Services 

Applicant

And

Mr Louse

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1.Before me this morning is an application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) that are in place pursuant to the Family Law Act 1975 (Cth). Those Regulations have been put in place to ensure Australia’s compliance with its obligations taken on by becoming a signatory to what is often called the Hague Convention: The Convention on the Civil Aspects of International Child Abduction. It is given the name “the Hague Convention” as The Hague is the place where it was negotiated between all the countries who created it and where, on an international basis, it is administered and regulated.

2.The essence of an application such as this one brought under the Child Abduction Convention and Regulations is to ensure that children who are wrongfully removed from their country of habitual residence or removed from their country of habitual residence and wrongfully retained in another country, are speedily returned to their country of habitual residence because it has been accepted by all the countries who have signed the said convention that the most appropriate place for disputes between parents about parenting arrangements for the children, including arrangements as to where children reside on an ongoing basis, are best determined and decided by the Courts of the country of habitual residence from which they were wrongfully removed or from which they have been wrongfully retained. 

3.There are a number of preconditions to the making of an order for the return of a child to their country of habitual residence.  They are set out in Regulation 16 sub-regulation 1A of the Regulations I have referred to.  In fact, these are  preconditions for the determination that the removal or the retention from the country of habitual residence is indeed wrongful, thus triggering the obligation on the Court to send the child back to the country of habitual residence, save for circumstances where a defence provided for in the Regulations has been made out and the Court, which is then given a discretion, determines to exercise the discretion in favour of allowing the child to stay in the country to which they have been removed or in which they have been retained.

4.The preconditions to a determination that a removal was wrongful are these:

a)That the child was under 16 – In this case, that is not disputed;

b)The child habitually resided in a convention country immediately before the child’s removal to or retention in Australia – That, in this case, is not disputed.  The country we are talking about is of course, one of our nearest neighbours, New Zealand.  The father who is the respondent to the Central Authority’s application does not dispute that his little girl habitually resided in New Zealand before she came to Australia;

c)The person, institution or other body seeking the child’s return (in this case it is the child’s mother, there is no dispute it is the child’s mother actually seeking the return of the child) had rights of custody in relation to the child under the law of the country which the child habitually resided immediately before the child’s removal to or retention in Australia – That, in this particular case, is also not in dispute.  There is evidence put before the Court as is always the case when the country from which a child has been removed is New Zealand, that sets out the rights of custody pertaining to the parents of the child in New Zealand, and in particular pertaining to the mother who in this case seeks to secure the return of the child to New Zealand.  As I have indicated, Mr Jordan of Counsel who represents the father, makes no issue with the fact that as a matter of law the mother had rights of custody in relation to the child under the laws of New Zealand immediately before the child’s removal to or retention in Australia;

d)The next is that the child’s removal to or retention in Australia is in breach of those rights of custody – In this particular case, the child’s removal from New Zealand to Australia was not in breach of the mother’s rights of custody as the father secured the authority of the Family Court of New Zealand in G Town, to be able to remove the child from New Zealand and bring her to Australia.  However, that is not the end of it.  He secured that authority to remove the child from New Zealand and bring her to Australia on the basis of an assertion to the Court that he was only taking the child from New Zealand to Australia for a short period of time, in fact Christmas holidays to spend time with his family, particularly his parents and the child’s grandparents, in Region F in Queensland.  He in fact had return air tickets booked and was given that permission to make that trip with the child by the Court.  However, he certainly did not have the permission of the mother to remove the child from New Zealand on a permanent basis.  The case made out against the father by the mother through the Central Authority here in Australia, who prosecutes these applications on behalf of the distantly removed parents, is that once here, the father then wrongfully retained the child in Australia by deciding that he was not going to take her back at the end of the holiday that they had.   There are a number of reasons for that that the father puts forward that I do not consider it necessary to detail here in my extemporaneous reasons.  However, given the mother objected and made clear to the father that she did not want her child taken from the country and that he was only authorised by the Court to take the child for a holiday in Australia, it seems clear and I do not understand it to be in dispute, that his retention of her at the end of that holiday instead of returning with her to New Zealand actually constitutes a breach of the mother’s rights of custody. 

5.All of those preconditions for the determination that the removal was wrongful seem to me to be made out. They are all conceded by the respondent father through his legal representatives.

6.There is one remaining precondition that has to be considered to determine that the retention of the child can properly be described as wrongful and thus giving rise to the obligation on this court to return the child to New Zealand.  The final precondition is that at the time of the child’s removal or retention, the person who had the rights of custody that were in fact breached, was actually exercising the rights of custody either jointly or alone, or would have exercised those rights if the child had not been removed or retained.  It is about this particular point that there is dispute in this case.  For the father, a strong and well-argued case is made out that the mother was not in fact exercising the rights of custody at the time of the wrongful retention. 

7.The first point I want to deal with in respect of giving reasons when considering this aspect of the case is that the retention of the child was at the end of the period of the holidays that the father had intended to and got the leave to come for.  It seems an agreed fact that the father had return tickets with a return flight for him and the child to New Zealand booked on 18 February 2014. That is then the date of retention.  The question then is, at that particular time and prior to it, was the mother actually exercising the rights of custody that she had, as well as the further question which is an alternative, would she have exercised the rights of custody if the child had not been retained in Australia. 

8.Mr Jordan points to the facts of the case and there does not seem to be a lot of dispute about these facts.  Indeed, as is quite appropriate, Mr Jordan made submissions pointing me to factual matters alleged by the mother in her affidavit material. 

9.It seems that the child, a seven year old girl named B, began living with the father as long ago as 8 January 2010.  She, as I understand it, is the ex-nuptial child of the mother and the father and one of five children of the mother, but the only child of the mother and the father in this particular case.  She came into his care on 8 January 2010 when she was only still a very little girl. She has lived with him ever since pursuant to an order that was granted in the New Zealand court on 15 September 2011. The father was granted lawful day-to-day care of the child and the mother was granted contact access rights to the child on a supervised basis, but not as I understand it, at any specified regular time.  It was ordered that she only spend time with the child on a supervised basis and the timing of that was left to be determined between the parties.  The order, I understand, also provided for the Chief Executive of the equivalent of the Child Welfare Department in New Zealand to also be an additional guardian in respect of the child, additional to the guardians that the laws of New Zealand have already provided for, namely both of her parents.

10.It seems that since that time the mother has only had one period of contact with the child where she spent some face-to-face time with the child and that seemingly was only when she was visiting the town in which the child and the father lived in New Zealand, namely G Town. That town is at the northern end of the southern island of New Zealand. The mother was visiting that town for a funeral of a deceased family member.  I note here that the mother for most of that time, as I understand the evidence, has been living in J Town. That town is at the exact opposite end, the most southern end of the southern island of New Zealand.  Having travelled to that southern island of New Zealand once myself I have some appreciation of the distance between the two, not only the distance, but the amount of time it would take to drive from J Town to G Town or vice versa, down the east or west coast of that island.

11.The circumstances (I understand the mother relocated herself to J Town) presented as challenging for both the mother and the father in respect of the mother keeping up some sort of regular or consistent time with the child, especially in circumstances where it was ordered to be supervised.  Nevertheless she spent one day with the child some time in 2010/2011. 

12.She has only infrequently, (I consider this the best way to describe it), attempted to telephone and speak with her child in that same period of time.  Interestingly, most recently before the child came to Australia, the mother called her for her seventh birthday, which was … November. The mother called her the day after, apparently not being able to contact her on her seventh birthday itself.  Indeed, it is also agreed that around that same time or just thereafter when the mother learned that the father was seeking to take the child to Australia that she sent a text to him where she said words to the effect, “I do not want you to take her to Australia”, effectively denying him permission to take her to Australia. 

13.As I understand it, the father was able to convince the Family Court of New Zealand in G Town to lift a previous prohibition order on him taking the child out of the country so he could get a passport for the child and so that he could bring her to Australia for the Christmas holidays.  The documents in those proceedings, as I understand it, were not served on the mother until the day after the order was made.  The Judge was somehow satisfied that he should make the order notwithstanding the fact that the mother had not been served.  I do not know, and cannot make any findings that the Court was assured or somehow told that the mother had been served or whether service had been waived. I do not know anything about that.  But as I understand it, whilst the child was here with the father on what the mother understood then to be a holiday, the mother very quickly instructed solicitors that she wanted to commence proceedings to ensure that she somehow got to spend time with the child in New Zealand upon her return.  As I see it, she signed documents on 19 December 2013 and those documents were filed in the Court, at least before the end of December 2013, at a time before the retention of the child at the end of the period for which she was brought to Australia. 

14.As I understand the New Zealand law, similar to ours, a right of guardianship or the right of custody that is conferred on parents, includes the right, not only to just spend time with the child or to talk to the child in accordance with orders that might be made by the Court, but also, fundamentally, it includes the right to determine where a child lives on an ongoing basis, especially if the question of where the child lives makes it any more or less difficult for the child to have any sort of contact or to spend time with that other parent.  I do not think the issue of the right to make that determination is in dispute in this case. 

15.As I see it, the facts do not allow me to make any other finding other than the fact that the mother was indeed exercising her rights of custody principally by: (a) sending the text to the father telling him she did not give her permission for him to take the child from New Zealand to Australia; and (b) by making the application that she did prior to the end of December in which she sought to gain further orders allowing the child to spend time with her in New Zealand.  Those matters, rather than considerations about the infrequency of the times that she rang the child or the times that she actually saw the child, persuade me completely that as a matter of fact the mother was indeed exercising her rights of custody conferred on her by New Zealand law.

16.Having heard Mr Jordan’s submission and appreciating the position of the father and why he would have instructed Mr Jordan to make those submissions, I have to nevertheless say that as a matter of law and as a matter of fact I am satisfied that the mother was exercising rights of custody at the time that the child was retained by her father in Australia, namely February this year.

17.I am satisfied as a matter of law that the fifth precondition for the determination of the retention being wrongful has indeed been made out.  I was informed at the start that that was the only issue in the case and accordingly, I do not need to consider whether any of the defences are made out or whether the discretion not to send the child back has been enlivened.

18.In the circumstances then, I am satisfied that the retention of the child in Australia in February of this year was wrongful and that I must make an order that the child be returned to New Zealand.  In the exercise of my discretion surrounding the making of terms and conditions that provide for the return of the child to New Zealand I intend to make an order that provides for the father to return with the child to New Zealand by no later than 12 October 2014.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 29 August 2014.

Associate: 

Date:  22 September 2014