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

[2012] FamCA 853

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & NASSAN [2012] FamCA 853

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Application by Central Authority for return of child to New Zealand – Whether consent – Whether there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation – Order made for return of child to New Zealand

Care of Children Act 2004 (NZ) s 15, 16, 17, 18(1), 97
Births, Deaths, Marriages, and Relationships Registration Act 1995 (NZ) s 2, 9, 11(1), 15(1)

Family Law (Child Abduction Convention) Regulations 1986 (Cth) Regs 16(1A), 16(3)(a)(ii), 16(3)(b), 16(5)

De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640
Director-General, Department of Child Safety & Milson [2008] FamCA 872
Director-General, Department of Community Services & Stratford [2005] FLC 93-249
In re P (a child) (Abduction: Custody Rights) 2004 EWCA Civ 971; 2004 All ER (D) 520; 2005 Fam 293
LK v Director General, Department of Community Services (2009) 237 CLR 582 Department of Communities & Helscher [2010] FamCA 703
M v M [2005] NZFLR 67
MW and Director-General, Department of Community Services [2008] HCA 12
Panayotides and Panayotides (1997) FLC 92-733 (FC)

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

RESPONDENT: Ms Nassan

FILE NUMBER: (P)BRC 6468 of 2012

DATE DELIVERED: 9 October 2012

PLACE DELIVERED: Brisbane

PLACE HEARD Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 26 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Green

SOLICITOR FOR THE APPLICANT:

Mr Cooper
Crown Solicitor

Crown Law

RESPONDENT: In person

Orders

IT IS ORDERED

1. The child K born … 2009 be returned to New Zealand.

2. Otherwise in accordance with Annexure A (to be brought in by the Central Authority).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities, Child Safety and Disability Services & Nassan 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: (P)BRC 6468 of 2012

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

Applicant

And

Ms Nassan 

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by the Director-General, Department of Communities, Child Safety and Disability Services (the Central Authority) under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (the Regulations), made pursuant to the Hague Convention (the Convention), for an order pursuant to Reg 15 of the Regulations that the child K born …2009, three and a half years old, be returned to New Zealand.

Issues

1. The Central Authority, on behalf of Mr S, the father, alleges that the child was wrongfully removed from New Zealand by Ms Nassan, the mother, on 24 March 2012.

2. The mother argues that the father consented to the child’s relocation from New Zealand to Australia; and/or that there is a grave risk that return of the child to New Zealand would expose him to physical or psychological harm or otherwise place him in an intolerable situation.

3. The Central Authority argues that even if the mother is successful in relation to either or both of those matters the “residual discretion” should apply nonetheless for the return of the child to New Zealand.

4. In relation to the matters in Reg 16(1A):

   ·the child is under the age of 16 years (Reg 16(1A)(a))

   ·the child was born in New Zealand and until 24 March 2012 had never left New Zealand so that, relevantly, the child immediately before the alleged wrongful removal habitually resided in New Zealand (Reg 16(1A)(b)). (Although this was not conceded by the mother, I would refer to LK v Director General, Department of Community Services (2009) 237 CLR 582; as analysed in Department of Communities & Helscher [2010] FamCA 703 at [57]).

   ·the following matters are in issue:

   ·whether the father had rights of custody in relation to the child under New Zealand law immediately before the alleged wrongful removal (Reg 16(1A)(c))

   ·whether the alleged wrongful removal is in breach of the father’s rights of custody (Reg 16(1A)(d))

   ·whether at the time of the alleged wrongful removal the father was actually exercising the rights of custody or would have exercised those rights but for the alleged wrongful removal (Reg 16(1A)(e)).

5. In relation to the matters in Reg 16(3), the following matters are in issue:

   ·whether the father consented to the mother removing the child from New Zealand (Reg 16(3)(a)(ii))

   ·whether there is a grave risk that return of the child to New Zealand would expose him to physical or psychological harm or otherwise place him in an intolerable situation (Reg 16(3)(b)).

6. If the mother should establish either of those matters, there is, further, the issue of whether the residual discretion ought be exercised nonetheless to order the return of the child to New Zealand: Reg 16(5).

The structure of the Regulations

1. Regulation 16(1) provides that if the Central Authority satisfies the Court that the child’s removal was wrongful the Court must, subject to Reg 16(3), order the child’s return.

2. Regulation 16(1A) provides that a removal is wrongful if each of the matters referred to in Reg 16(1A)(a) to (e) is established.  The Central Authority carries the onus of proof in relation to the matters referred to in Reg 16(1A).

3. Regulation 16(3) provides a discretion pursuant to which the Court may refuse to order the return of the children if the mother establishes a matter in Reg 16(3), relevantly, in this case Reg 16(3)(a)(ii) and/or Reg 16(3)(b). The mother carries the onus of proof in relation to those matters.

4. However, proof of a matter under Reg 16(3) does not have the effect that, without more, the Court will refuse to order the child’s return.  The discretion in Reg 16(3) is “unconfined except in so far as the subject matter and the scope and purpose of the [Regulations] enable it to be said that a particular consideration is extraneous”.  De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 661, per the majority.

5. Regulation 16(5) provides what is sometimes called “the residual discretion”, namely that the Court is not precluded from making an order for the child’s return only because a matter in Reg 16(3) is established by the mother.

6. Thus, Reg 16(5) makes clear that, even if the mother discharges the onus on her to prove (relevantly) one of the matters in Reg 16(3), it is open to the Court nonetheless to order the child’s return.

Relevant background facts

1. The child was born of a relationship between the mother and the father.

2. The parties did not marry.

3. Until 24 March 2012, the mother, the father and the child lived in New Zealand.

4. The mother brought the child to Australia on 24 March 2012, with the stated purpose, from 24 March 2012 onwards, of living in Australia with the child.

Determination of the matters in issue

Rights of custody

1. By order of the Family Court at Waitakere made on 10 January 2011 it was ordered by way of final parenting order that the child live with the mother and that the father have contact with the child on alternate weekends and such other times as agreed between the parties; and that the parties (the mother and the father) consult each other as to “guardianship issues”, including as to the child’s place of residence.

2. To my mind, that order clearly granted to the father “rights of custody” as defined authoritatively for the purposes of the Convention.

3. However, the Central Authority chose not to rely at all upon that order, but argued solely that the father had rights of custody within the meaning of the Convention pursuant to s 18(1) of the Care of Children Act 2004 (NZ) (CC Act), in the context of the sections preceeding s 18 relating also to guardianship. Accordingly, I will set out ss 15 – 18 of that Act:

   15.Guardianship defined

   For the purposes of this Act, guardianship of a child means having (and therefore a guardian of the child has), in relation to the child,-

   (a) all duties, powers, rights, and responsibilities that a parent of the child has in relation to the upbringing of the child:

   (b) every duty, power, right, and responsibility that is vested in the guardian of a child by any enactment:

   (c) every duty, power, right, and responsibility that, immediately before the commencement, on 1 January 1970, of the Guardianship Act 1968, was vested in a sole guardian of a child by an enactment or rule of law.

   16.Exercise of guardianship

   (1)The duties, powers, rights, and responsibilities of a guardian of a child include (without limitation) the guardian’s—

   (a) having the role of providing day-to-day care for the child (however, under section 26(5), no testamentary guardian of a child has that role just because of an appointment under section 26); and

   (b) contributing to the child’s intellectual, emotional, physical, social, cultural, and other personal development; and

   (c) determining for or with the child, or helping the child to determine, questions about important matters affecting the child.

   (2) Important matters affecting the child include (without limitation)—

   (a) the child’s name (and any changes to it); and

   (b) changes to the child’s place of residence (including, without limitation, changes of that kind arising from travel by the child) that may affect the child’s relationship with his or her parents and guardians; and

   (c) medical treatment for the child (if that medical treatment is not routine in nature); and

   (d) where, and how, the child is to be educated; and

   (e) the child’s culture, language, and religious denomination and practice.

   (3)A guardian of a child may exercise (or continue to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to the child, whether or not the child lives with the guardian, unless a court order provides otherwise.

   (4) Court order means a court order made under any enactment; and includes, without limitation, a court order that is made under this Act and embodies some or all of the terms of an agreement to which section 40(2) or section 41(2) applies.

   (5) However, in exercising (or continuing to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to a child, a guardian of the child must act jointly (in particular, by consulting wherever practicable with the aim of securing agreement) with any other guardians of the child.

   (6) Subsection (5) does not apply to the exclusive responsibility for the child’s day-to-day living arrangements of a guardian exercising the role of providing day-to-day care.

   17.Child’s father and mother usually joint guardians

   (1) The father and the mother of a child are guardians jointly of the child unless the child’s mother is the sole guardian of the child because of subsection (2) or subsection (3).

   (2) If a child is conceived on or after the commencement of this Act, the child’s mother is the sole guardian of the child if the mother was neither—

   (a) married to, or in a civil union with, the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; nor

   (b) living with the father of the child as a de facto partner at any time during that period.

   (3)If a child is conceived before the commencement of this Act, the child’s mother is the sole guardian of the child if the mother was neither—

   (a) married to, or in a civil union with, the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; nor

   (b) living with the father of the child as a de facto partner at the time the child was born.

   (3A)For the purposes of subsections (2) and (3), the mother and father of a child may be in a de facto relationship even if—

   (a) either parent is under 16; or

   (b) either parent is aged 16 or 17 and consent for the relationship (as referred to in section 29A(2) of the Interpretation Act 1999) has not been given.

   (4) On the death of the father or the mother, the surviving parent, if he or she was then a guardian of the child, is the sole guardian of the child.

   (5) This section is subject to sections 18 to 34, and therefore does not limit or affect the appointment of 1 or more additional guardians (for example, an additional testamentary guardian of the child appointed by the deceased parent under section 26(2)) or an order (relating to guardianship of the court) under section 33(1).

   18. Father identified on birth certificate is guardian

   (1) A child’s father who is not a guardian of the child just because of section 17(2) or (3) becomes a guardian of the child if his particulars are registered after the commencement of this section as part of the child’s birth information because he and the child’s mother both notified the birth as required by section 9 of the Births, Deaths, Marriages, and Relationships Registration Act 1995.

   (2) Subsection (1) does not change the guardianship status of a father who became a guardian before the commencement of this section.

1. In relation to s 17(2)(b) and (3)(b) the parties had conflicting factual evidence as to whether they lived together as de facto partners at any time during the period beginning with the conception of the child and ending with the birth of the child or at the time the child was born. Accordingly, the Central Authority did not invite determination of that factual issue, and instead relied only upon s 18(1) to prove that at the date the mother brought the child from New Zealand to Australia the father had rights of custody.

2. By s 97 of the CC Act, “rights of custody” is defined as including (s 97(b)) “the right to determine a child’s place of residence”.

3. Thus, if s 18(1) of the CC Act applies, such that accordingly s 16(2)(b) of that Act applies, being “changes to the child’s place of residence” that “may affect the child’s relationship with his or her parents and guardians” (and see s 16(1)(c) of that Act) then, pursuant to s 97(b) of that Act the father had “rights of custody” in relation to the child under New Zealand law immediately before the alleged wrongful removal.

4. As the Central Authority thus ultimately relied solely upon s 18(1) of the CC Act as the foundation for a finding that the father was a guardian of the child, for the purposes of s 16(1)(c) and s 16(2)(b), and in turn s 97(b) of that Act, it is necessary closely to analyse s 18(1) of the CC Act.

5. Section 18(1), as is plain, has two limbs, and I am required to be satisfied as to both of them before making any finding favourable to the Central Authority.

6. First, I must be satisfied, and find, that the father’s “particulars” are registered as part of the child’s “birth information”. This term is defined in the Births, Deaths, Marriages, and Relationships Registration Act 1995 (NZ) (BDMRR Act) (s 2):

   birth information means information relating to a birth; and, in relation to any birth, means information relating to that birth.          

7. Secondly, I must be satisfied, and find, that the father’s “particulars” are registered “because” he and the child’s mother both notified the birth as required by s 9 of the BDMRR Act.

8. It is convenient now to set out ss 9, 11(1) and 15(1) of the BDMRR Act:

   9. Parents primarily responsible for notifying birth

   (1) Both parents of a child born in New Zealand must, as soon as is reasonably practicable after the birth,—

   (a) jointly notify a Registrar of the birth in accordance with this Act; and

   (b) in the case of a child born on or after 1 January 2006, inform the Registrar whether or not, to the best of their knowledge, either or both of the child's parents are New Zealand citizens or persons entitled, under the Immigration Act 2009, to be in New Zealand indefinitely.

   (2) However, a Registrar may accept the form signed by only 1 parent if he or she is satisfied that—

   (a)the child has only 1 parent at law; or

   (b)the other parent is unavailable; or

   (ba) it is not reasonably practicable to obtain the other parent's signature because—

   (i)he or she is overseas; and

   (ii) he or she cannot be contacted within a period of time that is reasonable in the circumstances; or

   (c) requiring the other parent to sign the form would cause unwarranted distress to either of the parents.

   (3) A person who is not a child's parent must not notify a Registrar of the child's birth and is not capable of doing so except as provided in sections 7, 8, and 10.

   (4) For the purposes of this section, a child has 1 parent at law if—

   (a) the child is born as a result of a woman acting alone in a situation described in section 20(1) or 22(1) of the Status of Children Act 1969; and

   (b) the donor of the ovum, embryo, or semen (as the case may be) for the pregnancy does not become the partner of the woman after the time of conception but before the birth is notified for registration.

   …

11. Manner of notification of birth

(1) Subject to subsection (3), a person notifying a Registrar of a birth shall do so by completing and signing the standard form and giving, sending, or posting it to the Registrar.

…

15. Registration of parents' details

(1) A Registrar who is authorised by the Registrar-General to register births must register, as part of the birth information of a child, information about the identity of—

(a) the child's parents if the information is on the standard form signed by both parents; or

(b) a parent of the child if the information is on the standard form signed by the parent and accepted under section 9(2).

1. It must be noted immediately that s 18(1) of the CC Act is quite specific that a father identified on a birth certificate “becomes” a guardian of the child, not only if his particulars are “registered”, but registered “because” he and the child’s mother “both” notified the birth. This thus directly is a reference to s 9(1)(a) of the BDMRR Act to the exclusion of, as a matter of statutory interpretation in relation to s 18(1), any birth registered pursuant to s 9(2), eg, s 9(2)(b).

2. The child’s birth certificate (or extract thereof compiled on 26 April 2012) is annexure A to attachment B to the Central Authority’s form 2 application. It records the names of the child, the mother and the father, and all of their respective dates and places of birth.

3. There is a conflict in the evidence however which I must resolve, in relation to whether, for the purpose of the second limb of s 18(1), the child’s father and the child’s mother “both” notified the birth as required by s 9(1)(a) of the BDMRR Act: see in s 9(1)(a) the expression “jointly” notify a Registrar of the birth.

4. The father, in his affidavit sworn 30 May 2012, attachment B to the Central Authority’s form 2 application, said at par 3(a):

   3.…

   (a)Shortly after [K’s] birth [the mother] and I attended jointly before the Registrar to register his birth and we both signed registration and consent forms as a result of which the information in relation to both of us and [K] appears on the birth certificate.

5. Disputing this, the mother said in her affidavit filed 23 August 2012, par 3, last sentence:

   3.… Around this time I already had possession of the birth certificate applications which I had filled out on my own. [The father] did not want anything to do with me at that time.

1. The “birth certificate applications” referred to by the mother are not in evidence. However I note that the mother said that she “filled out” the “birth certificate applications” on her own, but did not say that the father did not sign them so as to amount to a conclusion that the parties did not “jointly” notify a Registrar of the birth in accordance with s 9(1)(a).

2. During argument, I asked Mr Green of Counsel, for the Central Authority, why s 9(2)(b) of the BDMRR Act ought not apply, on the basis that, on the mother’s evidence, the other parent was “unavailable”. Helpfully, Mr Green referred me to the definition of “unavailable” in the BDMRR Act (s 2):

   unavailable means dead, unknown, missing, of unsound mind, or unable to act by virtue of a medical condition.

3. The mother did not suggest in her evidence that the father was “unavailable” in respect of any of these defined matters, but simply that the father “did not want anything to do with me at that time”. Thus, I am unable to conclude, for the purpose of s 9(2)(b), that the father as “the other parent” was “unavailable” for the purpose of any joint notification to a Registrar.

4. Mr Green of Counsel then presented the following argument, which is cogent and which I accept.

5. Pursuant to s 15(1) of the BDMRR Act:

   1. A birth certificate for the child issued: see the birth certificate earlier referred to.

   2.The birth certificate records the father as the child’s father.

   3.This could not have occurred pursuant to s 15(1)(b), by application of s 9(2), because, put simply, it is plain on the definition of “unavailable” that s 9(2)(b) could not apply, as the father was not dead, unknown, missing, of unsound mind or unable to act by virtue of a medical condition.

   4.The registration of the father’s details, it thus must be inferred, was pursuant to s 15(1)(a), upon provision of the “birth information” on the “standard form” signed by “both” of the child’s parents, with effect that, for the purpose of s 9(1)(a) they “jointly” notified the birth, so that, at once, the requirement in the second limb of s 18(1) is met, because otherwise it would not have been possible, or at least inherently improbable, for the birth certificate to have issued.

6. I will add that, on their face, none of s 9(2)(a)(ba) and (c), nor s 9(3) or (4) is capable of application on the known facts.

7. 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 at [20] as to the proper approach in resolving disputed matters of fact:

   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.” (emphasis added)

   …

8. In Panayotides and Panayotides (1997) FLC 92-733 (FC) at 83,897, the Full Court of the Family Court of Australia (by implication) approved the following approach: (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.

9. In relation to whether the father had “rights of custody” immediately before the removal, namely 24 March 2012, Mr Green thus relied, for the purpose of resolving the evidentiary dispute between the parties as to whether the mother alone made application for the child’s birth registration or whether the father joined in this, on the circumstances that s 9(2)(b) did not apply (and that no other provision of s 9(2), nor indeed s 9(3) or (4) was capable of application, on the known facts), which had the effect that the only provision capable of applying was s 9(1)(a), so that I should conclude that the birth certificate issued under s 15(1)(a), because if the father had not joined in the application it is inherently improbable that the birth certificate could have issued.

10. I accept Mr Green’s submission thus that the independent extraneous evidence, namely, the issue of the birth certificate, provides sufficient proof to determine that the Central Authority has discharged the onus of it of showing that the matter comes within s 18(1) so that the father became and is a guardian of the child with the result that he had rights of custody in relation to the child under New Zealand law by reason of s 16(2)(b) and s 97(b) as explained.

Breach of the father’s rights of custody

1. By the mother removing the child from New Zealand to Australia for the stated purpose of the child living in Australia, from that time the father’s right of custody under New Zealand law concerning determining the child’s place of residence was breached.  

Was the father exercising rights of custody at the time of the removal

1. On 23 March 2012, the day before the mother removed the child from New Zealand to Australia, the father sought and obtained, on the ex parte basis, an injunction restraining the mother from removing the child from New Zealand.

2. The seeking and obtaining of this order is clear proof that at the time of the removal the father was exercising his right of custody in relation to the matter of determination of the child’s place of residence, and further that, but for the removal, he would have exercised that right of custody.

Conclusion as to the Reg 16 (1A) matters

1. By reason of the matters above, the Central Authority has discharged the onus on it to prove that the removal was “wrongful”, as that expression is used in the Convention and the Regulations: see Director-General, Department of Community Services & Stratford (2005) FLC 93-249 at [18] – [35].

Further as to the Reg 16(1A) matters

1. Although not relied upon by the Central Authority, I would have been prepared also to find that the matters in Reg 16(1A)(c)(d) and (e) proved by reference to the final parenting order made on 10 January 2011 (referred to above) as to existence of the father’s rights of custody immediately before the wrongful removal; that the wrongful removal was in breach of the father’s rights of custody granted pursuant to the order; and, on the evidence, that at the time of the wrongful removal the father was actually exercising the rights of custody granted pursuant to that order: see the affidavit of Ms C filed 19 September 2012, par 9, and annexure C; par 9, relevantly, deposing to facts which prove that; and annexure C being a photograph of the father and the child on “their last weekend” before the removal of the child from New Zealand to Australia.

Did the father consent to the mother’s removal of the child

1. The mother relied on the following evidence in her affidavits and those of her witnesses.

Mother - affidavit filed 23 August 2012

2.… I came to Australia with my child as the father had given his express permission to do this as he acknowledged.

…

12.June 2011 I and [Mr J] were thinking about moving to Australia. I informed [Mr S] that I was thinking about moving to Australia around March 2012. At that time he said let’s talk about it when that time comes. His partner also mentioned that her [F] and their daughter [N] were thinking of making the big move to Australia as well. Everything seemed good.

13.Time passed and it was getting closer to 2012. My partner [Mr J] had moved to Australia October 2011 to get a good start for us before we fly over. Around September I then wanted to speak with [Mr S] again about me flying me and my 2 kids over to Australia. We texted to sort a day to meet up. Then he asked what I wanted to talk about through text. I then told him and through text he gave me his consent. But I still wanted to talk in person. So we arranged a day to meet up. On that date I drove to his place and we spoke in the car. We both spoke about what we wanted and our situation. I then informed him that my partner [Mr J] will be paying for our passports. [Mr S] insists that he pay for [K’s] passport, I then told him it was fine and I would pay as I have never asked for a cent from [Mr S], And did not plan on starting now. That day [Mr S] verbally gave me his consent.

14. I then went and spoke to my lawyer about what’s happened and asked her if she could send [Mr S] a letter of consent for him to sign. After a couple of weeks my lawyer informed me that she has not heard from him. I then wanted to speak with [Mr S] but he refused.

15.Me and [Mr S] didn’t speak but I would talk with his partner [Ms M] to tell her what’s been happening. I gave [Mr S] a date from when we were flying to Aussie, and also informed him when passports were purchased. I did not lie on the application of the passport, as I do have day to day care of [K] which I believe is full custody. I did not need his signature or permission to purchase this. I told [Mr S] I was to move on March the eighteenth the same date as my two sisters and brother in-law, but my car did not sell before then so I informed him that I was moving the following week.

16.On March tenth 2012 my family organised a farewell for me and my sister’s journey to reside in Australia. [Mr S] and his partner at the time attended this farewell and didn’t mention or seem to have a problem of me and my kids moving to Australia.

17. A day before I was to fly to Australia [Mr S’s] girlfriend texts me saying “[Mr S] said you can’t leave the country because he put a stop on [K’s] passport”. I didn’t take it into consideration because she had nothing to do with this situation. So my kids and I proceeded on our journey to Australia.

18.I called [Mr S] the next day telling him I was in Australia. … (emphasis added)

1. Annexures A, E and F to that affidavit are statements by the mother’s sisters Ms D and Ms N, and the maternal grandmother Ms R. They are statements, not affidavits, largely comprising opinion and hearsay.

Mother – affidavit filed 26 September 2012

1. No matters are included in this affidavit in relation to the father’s alleged consent.

Ms D– affidavit filed 13 September 2012

1. This affidavit largely follows the statement annexed to the mother’s affidavit, largely comprising opinion and hearsay.

Ms R– affidavit filed 13 September 2012

1. This affidavit largely follows the statement annexed to the mother’s affidavit, largely comprising opinion and hearsay.

Ms N– affidavit filed 26 September 2012

1. Similarly, this affidavit largely comprised opinion and hearsay. However, at par 13, there is relevant evidence as to a text message which she (in effect) said she saw:

   13.… I am witnessed to a txt that he had given [Ms Nassan] stating her to do whatever she likes with [K]. She had said and I quote “Me and [K] are still moving to Australia” his response was “Do whatever you like”. …

The letter referred to in the mother’s affidavit filed 23 August 2012 par 14

1. I have set out above the content of the mother’s affidavit filed 23 August 2012, par 14.

2. The father deposed, in a response affidavit filed 19 September 2012, pars 12 and 13:

   15.I refer to paragraph 14 of [Ms Nassan’s] Affidavit. I did receive a letter from [Ms Nassan’s] lawyer but what it said in it was that if I did not reply within ten days she would apply to the Court for permission to take [K] to Australia. As I was not about to consent I did not reply, and we waited for the threatened proceedings to be served. No documents were received. As I have said I was then initially confident that no passport could be issued without my consent but in the face of [Ms Nassan’s] insistence that she was going (although no date was specified) I became suspicious that she was up to something and so I approached my lawyer, and applied to the Waitakere Court for an Order preventing [K’s] removal from New Zealand which was duly granted. I have a suspicion that somehow [Ms Nassan] found out about that application and the Order being made, and she departed suddenly and without warning, after the Order was made but before I could either serve it on her or get the Order registered with Customs and Interpol.

   15.The first I knew that [Ms Nassan] had gone with [K] to Australia was when we received a message via Facebook. I was extremely distressed and my application has promptly followed thereafter. (emphasis added)

3. Having regard to the conflict (or at least seeming disparity) between the mother’s par 14, and the father’s par 12, Mr Green sought leave to file and read an affidavit of Ms H sworn 26 September 2012, which leave I granted. That affidavit deposed to the obtaining of a copy of the letter referred to and annexed the letter. At the Bar table, the mother was given a copy of the affidavit and I explained to her its purpose. The mother said from the Bar table that she did not object to the affidavit and acknowledged that the letter was the one referred to by her in par 14 of her affidavit. The letter was on letterhead “[Ms A] Family Lawyer” and dated 26 January 2012. It was addressed to the father with the subject matter headed “[K]”. The text of the letter provided:

   You may recall that I previously acted for [Ms Nassan] in respect of Care of Children Act proceedings in the Waitakere Family Court.

   [Ms Nassan] has recently attended with me and discussed her desire to relocate to Brisbane, Australia with [K].

   I understand that you have been in two minds about whether to consent to the relocation.

   If you are not opposed to [K] moving to Australia, please sign the enclosed Consent form and return the same to me in the stamped self-addressed envelope provided.

   If I do not receive the signed Consent form from you within the next 7 days, [Ms Nassan] may decide to make an Application to the Court for an Order allowing [K] to relocate to Australia. (emphasis added, except for the word “enclosed”)

4. The letter included also “cc. [Ms Nassan]”.

5. The enclosure to the letter provided:

   CONSENT

   I, [Mr S] of [B Street, A suburb], Auckland, Hereby Consent to my son [K] born …2009 ([“K”]) relocating to Brisbane, Australia on or about 18 March 2010 and remaining there permanently.

6. I would observe, first, that I do not discredit the father’s evidence by his reference to “ten” days as opposed to, as contained in the letter “7” days referred to in its last paragraph.

7. Plainly, the father received the letter, and did not respond to it, for the reasons he deposed, which I accept.

8. As a matter of necessity, and for procedural fairness, the mother was called to give oral evidence as to the matters she had stated from the Bar table. In her brief oral evidence the mother confirmed that her lawyer at the relevant time was Ms A, and that the letter referred to in par 14 of her affidavit indeed was the letter annexed to Ms H’s affidavit, such that it was verified.

9. The content of the letter is important for several reasons, not the least of which is that it comprises “independent extraneous evidence in support of one side” to which regard must be had where there is “disputed non-oral evidence”: see In re P (above); citing In re F (above); and Panayotides (above); in particular as to the use of any “documentary or corroborative evidence”.

10. In In re P (above), at [33], reference is made to the giving of “clear unequivocal and informed” consent to the removal of a child in the context that, if this is shown, it would be difficult to see why a court should not exercise the discretion to permit the child to remain in the country to which it was “agreed” he or she should go.  Other formulations include similar expressions such as “real, positive and unequivocal” consent, and evidence as to consent which is “clear and compelling”.  See, eg, M v M [2005] NZFLR 67, at [15] – [17], per Somerville J.

11. As I observed in Stratford (above), at [48], I do not understand these phrases to mean that the standard of proof is other than the civil standard (see, eg, M v M (above) at [23]), but rather to refer to the quality of the evidence requisite to meet that standard.

12. Thus, where there is disputed non-oral evidence, any “independent extraneous evidence” must be more than persuasive, and indeed, be compelling, to reject a deponent’s sworn testimony, such that, where there are “no grounds for rejecting the written evidence on either side”, the party carrying the onus will have failed to establish his or her case:  In re F (above) at the part cited.

13. The letter, its enclosure, and the father’s evidence about the letter in par 12 of his affidavit (set out above) seem to indicate plainly the absence of the father’s consent as at the date of the letter, 26 January 2012.

14. The mother was given opportunity later, in her oral evidence, to give any further evidence which she could in relation to the father’s alleged consent, in particular after the date of the letter.

15. Despite this opportunity, the mother struggled to identify any occasion or words either before or after the letter by which the father gave his “clear unequivocal” consent, or any “real, positive and unequivocal consent”. On the contrary, she was unable to do so. She said, for example “He was back and forwards a lot, he would give consent then retract it”, and “Because he had given me his consent I decided not to make the application” being a reference to the application in the last paragraph of the letter.

16. This is nonsensical, because, as at 26 January 2012, plainly the mother’s instruction to her lawyer was that the father had been “in two minds” about whether or not to consent to the child’s “relocation”; and, in the mother’s own affidavit, par 14, she said that subsequently she “wanted to speak with [Mr S]”, “but he refused”. Despite opportunity thus, indeed further opportunity by way of oral evidence, the mother was unable to provide any coherent account of precisely when or where the father gave any “clear unequivocal” consent, preferring to “swear the issue” rather than to descend to necessary cogent evidence. Somewhat cleverly, the mother pointed to the circumstance that the last paragraph of the letter did not say that she “would” make an “Application to the Court” but that she “may decide” to make such an application, as if to excuse the circumstance that she did not do so.

17. The letter states quite clearly, at its date, 26 January 2012, that the father had been “in two minds” as to whether or not to consent to the child’s “relocation”.

18. It seems fairly clear, on the face of the letter, that such had been the mother’s instruction to her lawyer, and indeed, the mother did not suggest that her lawyer was in error in this regard, as at the date of the letter.

19. It seems to me thus that the letter falls into the category of “independent extraneous evidence”, which indeed is more than persuasive, but compelling, to reject firmly the mother’s suggestion that, at least as at the date of the letter, the father had given any clear unequivocal consent to her relocation of the child from New Zealand to Australia, such as firmly to reject the mother’s case that the father had consented to her relocation proposal for the child.

20. For the sake of completeness, I need to deal with the mother’s evidence in par 13 of her affidavit filed 23 August 2012 that “through text he gave me his consent”; and that subsequently during conversation “That day [Mr S] verbally gave me his consent”. The text message upon which the mother relies is not in evidence. However, it’s substance, according to the affidavit of the mother’s sister Ms N, in her affidavit filed 26 September 2012, par 13, was as she deposed, namely that:

    13.… I am witnessed to a txt that he had given [Ms Nassan] stating her to do whatever she likes with [K]. She had said and I quote “Me and [K] are still moving to Australia” his response was “Do whatever you like”. … (emphasis added)

1. Significantly however, the mother’s evidence in par 13 of her affidavit “through text he gave me his consent” was followed immediately by par 14 of her same affidavit that she “then” spoke to her lawyer and instructed that the letter referred to be sent, which letter included, as mentioned, her instruction to her lawyer that, as at the date of the letter, the father was “in two minds”. An instruction by the mother to her lawyer that the father was “in two minds” is hardly evidence of “clear unequivocal” consent, and indeed the letter, as mentioned, enclosed a “consent” form for the father to sign, which he did not sign.

2. As is plain, the father not only did not sign the consent form which he was invited to sign, but expressly said that the reason that he did not do so was twofold, first that he “waited” for the “threatened proceedings” to be served, but that none were served; and secondly that he was “confident” that no passport could be issued for the child without his consent: father’s affidavit filed 19 September 2012, par 12, set out above.

3. I would refer now to the mother’s affidavit filed 23 August 2012, par 15. In that paragraph, it seemed to suit the mother’s purpose to suggest that communication between her and the father’s then partner Ms M was tantamount to communication with the father. Curiously, the same paragraph contains that she “informed” the father that she was intending to move to Australia with the child “the following week”. It is not at all clear from the mother’s evidence, at par 15, whether she asserts this was a “one on one” conversation with the father, or via Ms M. The evidence suffers from any proper level of particularity. Moreover, “informing” someone, and obtaining their “consent” are quite different matters.

4. Further, curiously, and in contrast to par 15, in par 17 of her affidavit the mother said that the day before she brought the child to Australia (23 March 2012), Ms M texted her saying that the father had said that she could not leave New Zealand because he had put a “stop” on the child’s passport; but that she “did not take this into consideration” because “she [Ms M] had nothing to do with this situation”. It is inconsistent I think that the mother sought to rely on Ms M for her own purposes in par 15 of her affidavit, but disowned such reliance in relation to par 17 of the same affidavit.

5. Next, the mother relied on a “farewell party”, 10 March 2012, which she said was the last time that she saw the father before removing the child to Australia.

6. I have set out already the mother’s affidavit, par 16, in this regard.

7. In contrast, the father said in his affidavit in response filed 19 September 2012 (par 9) that any suggestions by the mother that he consented to her taking K to Australia are “absolutely false”; and that not only that at no time did he ever consent but that at all times he was “vehemently opposed” to the mother’s proposal and “refused all of her requests” (par 9).

8. In relation to the “farewell function” on 10 March 2012 the father said:

   17.Finally I absolutely refute the allegation in paragraph 15 that [Ms Nassan] provided either my partner [Ms M] or me a date when she intended to fly to Australia. [Ms M] and I did attend a farewell function on 10 March 2012 to say goodbye to Ms [Nassan’s] sister [Ms N] and her partner [Mr T] who had been a close friend of mine for many years. At no time was it disclosed to me or discussed at that party that this was in any way a farewell for [Ms Nassan] and I did not believe that it was. At the request of [Mr T] I gave a speech farewelling [Ms N] and him and wishing them all the best in their new life in Australia. If I had known that [Ms Nassan] was going and I was consenting to that I would most certainly have included her in my farewell speech … (emphasis added)

9. I accept the father’s evidence as having the “ring of truth”; and consistency with the photograph annexure C to the affidavit of Ms C, the paternal grandmother, as the photograph does not suggest any awareness in the father of that occasion being other than a usual contact time, rather than a farewell. Further, it is likely that if the father either at the time of the “farewell party” or on the occasion of the photograph had given consent there would have been some occasion of farewell to the child, with parting gifts and the like for the child. In stark contrast, the father as mentioned sought and obtained on 23 March 2012 the injunction against the mother referred to.

10. The mother, at my invitation, having regard to MW and Director-General, Department of Community Services [2008] HCA 12; and see Director-General, Department of Child Safety & Milson [2008] FamCA 872 at [36] – [37], cross examined the father. She put to him that she had said to him to the effect “I will leave in March” and “I asked for your consent”, and that he had said that she could “Do whatever you want”.

11. Without prompting, the father said “That was in anger”. As the trial judge, I accept that the father’s response “Do whatever you want” (which plainly he admitted) was one made in the “heat of the moment”, and not consistent with clear and unequivocal consent. I would refer again to Stratford (above) at [62] – [64]:

    62.The father’s words “It couldn’t happen quickly enough”, are not denied by him.  However, the father’s words, in the context of the prevailing acrimony, and the circumstances described by the mother, in my view fall short of reliable evidence as to a clear and unequivocal communication by the father to the mother of his consent, nor, in those circumstances, a communication on which properly the mother can rely.

    63.Indeed, it is somewhat surprising that, in all of the circumstances, the mother would seek to rely on the father’s words as the communication of consent rather than, as seems more likely on the evidence, a “passing remark” by a parent suffering trauma or a “passing remark in the agony of the moment.”  See Re H (Abduction: Acquiescence) [1998] AC 72, per Lord Browne-Wilkinson at 89C-90D, especially at 89H-90A for the observation that clear and unequivocal conduct (as to acquiescence) “is not normally to be found in passing remarks … by a parent who has recently suffered the trauma of the removal of his children”. Although dealing with acquiescence, and thus a parent who already had suffered the trauma of a removal, in my view the principle is equally applicable to the issue of the question of consent before a removal, and thus to the father’s case here, in the sense of his having made a “passing remark” in the heat of the moment.

    64.In A v A(Children) (Abduction: Acquiescence) [2003] EWHC 3102 (Fam), Sumner J (sitting in the Family Division) referred to the speech of Lord Browne-Wilkinson and at [53] expressed doubt that a “passing remark in the agony of the moment” necessarily should be taken to amount to unequivocal conduct. Sumner J, in the context of the facts of that case, referred further to a “passing remark in the agony of the moment which is retracted soon afterwards.” However, Lord Browne-Wilkinson did not suggest such a qualification, or retraction, as a matter of principle. See, in particular, at 89C-90D, referred to above.

12. I would make the same observation as to the affidavit of Ms N (to which I have referred), par 13, to the extent that she said that she witnessed a text from the mother to the father “Me and [K] are still moving to Australia” and that the father’s response was “Do whatever you like”.

13. In re-examination of the father by Mr Green, the father said similarly that his words “Do whatever you like” were spoken in “anger”. He said to the effect: “She wanted to talk about their going to Australia. I tried to say my part, but she didn’t want to hear it, and she said ‘It doesn’t matter what you say’ and that she still wanted to go to Australia; so I said ‘Do you whatever you want’, because she wasn’t gonna listen to me”.

14. The father emphasised that this conversation was before he had received the Ms A letter, and added to the effect: “I said what I said because she wanted what she wanted and I wasn’t going to let her do it”, and relied otherwise upon his evidence already given in relation to his response to the letter, namely, that because of the last paragraph in it, he thought that she could not “do it”, without a Court application which he would defend.

15. Ms M said in an affidavit filed on behalf of the father on 19 September 2012 that she was in a de facto relationship with him between about 15 August 2009  and end 2011; that the mother had asked her to provide an affidavit for her in these proceedings but that she had declined to do so (pars 1 and 2); and, more pertinently, that a few days after an incident described in her affidavit at pars 12 and 13 (“It was only a few days after this incident”) that she and the father “discovered” that the mother had left for Australia with [K] “without telling the father or any of his family that she was doing so”.

16. Further, in relation to the mother’s alleged farewell party for her, Ms M said:

    16. I have read paragraph 16 of [Ms Nassan’s] affidavit. I attended a farewell party with [Mr S] for [Ms Nassan’s] sister [Ms N] and her partner [Mr T] but I most certainly wasn’t aware of the fact that this was in anyway a farewell party for [Ms Nassan], and I am certain that [Mr S] didn’t consider it to be so either. [Mr T] was in fact a very close friend of [Mr S’s], and [Mr S] gave a speech at the farewell party wishing them well in Australia. The possibility of [Ms Nassan] leaving for Australia was never mentioned.

17. I accept this evidence. It is significant, I think, that if there had been any suggestion at the “farewell party” that it was also for the mother, at least some mention of that would have been made at the party, which, as I find, was not made in the speeches.

18. In all of the circumstances, I reject the mother’s case that the father consented clearly and unequivocally to her removal of the child from New Zealand to Australia, not only on the basis that she has failed to discharge the onus on her of proving this but more overwhelmingly against her I find positively in the father’s favour that no consent was given.

Grave risk

1. The mother’s material included references to several past matters, and to her belief that if the child is returned to New Zealand then there is a grave risk that the return would expose him to physical or psychological harm or otherwise place him in an intolerable situation.

2. The mother’s material, and the father’s response to it, are well summarised in Mr Green’s brief supplementary written submissions filed 26 September 2012, which I will set out as presented:

   15.The mother states a belief (mother’s affidavit paragraph 21) that [K] “will be in harm [sic] if he returned to New Zealand”. In support of this statement the mother states:

   a.The father “needs to first take care of himself”

   b.“His actions… just shows that he is not responsible and till this day does not make appropriate/Right [sic] decisions.”

   c.The mother believes “he is still taking drugs”

   d.The father has a criminal record

   e.Implies the father exhibits “unstable behaviour”.

   16.Where the mother has provided some factual basis for these beliefs, it appears they are based upon hearsay information – see paragraph 10 of the mother’s affidavit.

   17.The father admits that he has “had problems in my past.” (Father’s affidavit in reply, paragraph 15) He admits: he has a conviction for an offence of “robbery by assault” committed on 15 September 2011. He denies smoking marijuana in the child’s presence.

   18.The mother does not state that if the court orders that [K] be returned to New Zealand she will not return. Even if she were to state this, the mother cannot by her own voluntary actions, create the very risk to [K] that she then seeks to rely upon – Director-General, Department of Families Youth and Community Care v Hobbs (2000) FLC 93-007 at paragraph 82 per Lindenmayer J.

   19.Under the existing NZ court orders, [K] would continue to live with his mother and spend every second weekend with the father.

   20.If the mother is of the view that [K] spending time with his father every second weekend places him at risk, it is open to her to make an appropriate application to the New Zealand court. In this regard, it should be noted that the first court proceedings were instigated by the mother and that as late as January 2012, she retained a solicitor in New Zealand.

   21.Notwithstanding the father committing a criminal act in September 2011, the available evidence indicates the father continued to spend weekends with [K] up until he was brought to Australia (affidavit of the paternal grandmother [Ms C], paragraph 9). While not excusable, the evidence of having committed a criminal act per se does not support a finding that [K] would be at a risk, let alone a grave risk of being exposed to physical or psychological harm or otherwise being placed in an intolerable situation.

   22.The mother appeared quite content to send [K] back to New Zealand provided the father gave “his honest consent saying he would return [K] back to Australia.” (mother’s affidavit, paragraph 18). Also see the message exchange between the mother and “[Ms Y]” on 26 July 2012 (annexure “B” to the mother’s affidavit”). There apparently were no welfare related stipulations attached to this offer.

   23.The affidavits of [Ms R] (maternal grandmother) and [Ms D] (maternal aunt) are focused more on judging the father for his actions (verbally abusive to his own parents – which is denied by the paternal grandmother; spending most of his weekends nightclubbing with the boys), than identifying how [K] returning to New Zealand would expose him to a grave risk of physical or psychological harm or expose him to an intolerable situation.

   24.It is submitted the mother has not discharged the onus of establishing this exception.

3. In my view, these paragraphs adequately capture the essence of both the mother’s allegation of grave risk, and the father’s refutation of it, so as to make it unnecessary for me to refer to the evidence in any more detail.

4. I accept the submissions of the Central Authority, and find that the mother has not discharged the onus on her in relation to her case under Reg 16(3)(b).

Residual discretion

1. The matter of exercise of the residual discretion does not arise.

Order

1. I will order the child’s immediate return to New Zealand.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 9 October 2012.

Associate:

Date:  9 October 2012