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

[2015] FamCA 1

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & ROVO [2015] FamCA 1

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Final orders – Application under the Hague Convention for the return of the children to New Zealand – Where the children were removed to Australia without the knowledge or consent of the Applicant father - Where the Respondent mother alleges the Applicant father has a history of violence– Where grave risk to the children should they be returned to New Zealand is not established – Where a child objects to being returned to New Zealand – Where the child’s objection does not show a strength of feeling beyond mere expression of a preference or of ordinary wishes

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

Director-General, Department of Community Services v Crowe (1996) FLC 92-717
DP v Commonwealth Central Authority: JLM v NSW Department of Community Services (2001) 206 CLR 401
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Murray v Director, Family Services (ACT) (1993) FLC 92-416
MW v Director-General, Department of Community Services (2008) 244 ALR 205
Zotkiewicz & Commissioner of Police (No. 2) (2011) FLC 93-472

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

RESPONDENT: Ms Rovo

FILE NUMBER: BRC 6545 of 2014

DATE DELIVERED: 5 January 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 5 December 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: Mr Gunn

SOLICITOR FOR THE RESPONDENT: O'Sullivans Law

Orders

IT IS ORDERED THAT:

1. The children, S born … 2003 and B born … 2006, be returned to New Zealand; and for the purposes of giving effect to this Order:

a.   The said children leave the Commonwealth of Australia on or before 19  January 2015;

b.   The said children arrive in New Zealand on or before 20 January 2015;

c.   Pending the said children returning to New Zealand, the Respondent  Mother continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said children from the Commonwealth of Australia;

d.   Pending the said children returning to New Zealand, the Respondent  Mother continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said children from their current address at Unit D, … E Street, Gold Coast Suburb C, 4… ;

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 Mother Ms Rovo born … 1975 and the children, S born … 2003 and B born … 2006 on the Family Law Watchlist at all international departure points in Australia;

f.   The names of the said children and the Respondent Mother Ms Rovo born … 1975 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 Communities, Child Safety and Disability Services advising of the travel arrangements made for the said children 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.   The Respondent Mother Ms Rovo born … 1975 forthwith provide to Ms F, Department of Communities, Child Safety and Disability Services or her nominee appropriate passport photographs of the said children to enable the production of appropriate travel documentation for the children;

i.    Ms F, Department of Communities, Child Safety and Disability Services or her nominee be at liberty to release all passports relating to the said children; and release the Respondent Mother's passport to her or her nominee upon request;

j. 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 children 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).

1. The Respondent Mother Ms Rovo born … 1975, pay all the necessary expenses associated with returning the said children to New Zealand, including the cost of airfares and departure taxes (if any) for their travel from Brisbane International Airport to New Zealand.

1. All other applications be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Rovo 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 6545 of 2014

Director-General, Department Of Communities, Child Safety And Disability Services 

Applicant

And

Ms Rovo

Respondent

REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 24 July 2014, the Director-General, Department of Communities, Child Safety and Disability Services, in his capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), applies for final orders for the return of two children to New Zealand, namely S born in 2003, who is currently eleven years of age and B born in 2006, who is currently eight years of age.

2. The requesting applicant is the children’s father, Mr Rovo (“the father”), a New Zealand national.  The respondent to the application is Ms Rovo (“the mother”), a New Zealand national who is currently residing with the subject children on the Gold Coast in Australia.  The mother and the children came to Australia from New Zealand on 4 April 2014 and it is not in issue that the mother did not have the father’s consent to the children’s removal from New Zealand.

3. On the first return date of the application, on 1 August 2014, service of the application had yet to be effected upon the mother.  On that date I nevertheless made interim orders, including what may conveniently be described as the usual orders preserving the status quo at the interim stage of an application such as this, having regard to the contents of the application and the material filed in support of it.  Liberty to apply was granted and the matter was otherwise adjourned for further mention on 18 August 2014.

4. Prior to the further mention, on 14 August 2014, the applicant filed an Application in a Case seeking an information order from the Department of Education, Training and Employment regarding the mother’s whereabouts as the applicant was at that point still unable to effect service.

5. In the event on the return date on 18 August 2014 the mother was present and orders were made for, inter alia, the proceedings to be listed for final hearing on 15 October 2014.

6. On 2 October 2014 the Court received correspondence from the solicitors for the applicant stating, in effect, that having regard to the content of the mother’s material filed in response to the application there was a need for the matter to be listed for mention for the purpose of determining the need for a Regulation 26 report.  Thus the matter was again listed on 8 October 2014 for that purpose.  On that date orders were made for, inter alia, preparation of a Regulation 26 report in relation to the older child; the final hearing was deferred until 5 December 2014 to enable the Regulation 26 report to be prepared and available in the meantime; and some amendments were made to the directions for the filing of material for the purpose of the final hearing.

Hearing on 5 December 2014

1. Comparison between the affidavit evidence of the requesting applicant father filed in support of the application; and that of the respondent mother in opposing the application; revealed areas of conflict in the evidence or issues of disputed fact concerning some central issues.

2. As was observed by the Full Court in Zotkiewicz & Commissioner of Police (No. 2) (2011) FLC 93-472 at [88] the High Court has now made clear on a number of occasions that it should not be assumed that all applications under the Convention will be dealt with “on the papers”:

   It is therefore important that applications are determined by a principled adjudication of factual differences, rather than by glossing over differences, or determining the dispute by reference to less controversial matters.

3. In that case the Full Court made specific reference to the High Court’s decision in MW v Director-General, Department of Community Services (2008) 244 ALR 205 “where the plurality of the High Court referred not only to the prospect of leave being granted to allow cross-examination, but the Court taking action of its own initiative to ensure significant factual discrepancies are resolved.”

4. Reference was also made to the reiteration by the High Court in LK v Director-General, Department of Community Services (2009) 237 CLR 582 (at 590 [15]), where the High Court observed that the requirement for applications to be “dealt with expeditiously does not yield any general, let alone inflexible, rule prohibiting cross-examination of deponents of affidavits filed in support of or opposition to the application.”

5. In circumstances where there was the conflict of evidence referred to; and the requesting applicant father had travelled from New Zealand to be present for the hearing; and the respondent mother was also present; I gave leave for Counsel for the mother to cross-examine the father, over the objection of the Central Authority, at the hearing.  The Central Authority declined the opportunity to cross-examine the mother or her witnesses.  The Regulation 26 report writer, psychologist Ms G was also cross-examined on behalf of each party.

Rights of custody and breach

1. Regulation 4(2) provides:

   (2)      For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child. 

2. The application is supported by an affidavit of Robert Harte, barrister and solicitor of the High Court in New Zealand, setting out the relevant law of New Zealand and its applicability to this case concerning rights of custody.  I accept that Mr Harte has the necessary expertise to provide such expert evidence as to the relevant law of New Zealand.  There was no challenge to the accuracy of Mr Harte’s evidence or to his expertise and I accept Mr Harte’s evidence.

3. There is no doubt that rights of custody are determined by reference to the applicable law in the country of habitual residence, in this case, New Zealand. It is not in doubt that rights afforded to a guardian under New Zealand law amount to rights of custody within the meaning of the Regulations (see, for example, Director-General, Department of Community Services v Crowe (1996) FLC 92-717 (“Crowe”)).  Whether there has been a breach of rights of custody is a matter determined in accordance with Australian law (Crowe).

4. Counsel for the mother initially argued that by reason of a certain Deed entered into by the parents on 3 June 2011 in New Zealand (and specifically clause 3 in that Deed recording the parental agreement for the children to be in the primary care of the mother), that this resulted in the father no longer having relevant rights of custody within the meaning of the Regulations.

5. However, that argument seemed to proceed on a mistaken understanding of the law by Counsel for the mother and ultimately in the course of argument it was not pursued. That is, it was conceded that, as established on the applicant’s expert evidence, the father had rights of custody under New Zealand law within the meaning of the Regulations at all material times and as there was no issue that the father did not consent to the children’s removal to Australia on 4 April 2014, such removal was in breach of the father’s rights of custody.

6. Whilst Counsel for the mother cross-examined the father concerning his having signed the Deed dated 3 June 2011 (a matter not actually in issue given that the Deed is annexed by the father to his affidavit filed 21 October 2014), there was no challenge by cross-examination directed to the father concerning his version of when and for what periods the parties cohabited during their relationship. 

7. The father deposes at [9] of his affidavit that the parties began living in a

   
   

   de-facto relationship, living as if they were married, from when they were approximately aged 18 years.  On his evidence the parties were in such a relationship through the conception, pregnancies and birth of each of the children.  Whilst the mother’s affidavit evidence disputes in some respects the father’s version, in responding to the father the mother admits the relationship by deposing that the parents “separated” when S was three months old.

8. However, it is clear that the parents resumed their relationship.  The father deposes to them buying a house together (see Exhibit A to his affidavit) and implicit in the Deed dated 3 June 2011 is the resumption of the relationship.  In [4] to [18] of his affidavit filed 21 October 2014 the father provides a detailed account of the parental living/relationship arrangements.  The father’s evidence is corroborated by the evidence of Mr H and Ms J Rovo in various respects. 

9. Given the absence of any challenge to this aspect of the father’s evidence when he was cross-examined, I find that the parents were living in a de-facto relationship at the time when S was born; and that the mother was living in a de-facto relationship with the father at some time during the period beginning with conception and ending with birth with respect to B.  On that basis, I am satisfied on the evidence of Mr Harte which I accept that pursuant to the Care of Children Act 2004 (NZ) the father and the mother are guardians jointly of each of the children.

10. In terms of breach of rights of custody there can be no doubt that where more than one person possesses rights of custody in relation to a child the exercise of rights of custody by one person possessing those rights may at the same time breach the rights of custody possessed by another person possessing such rights.  In this case to the extent that the mother causing the children to leave New Zealand and come to Australia on 4 April 2014 was an exercise of her rights of custody, it was an exercise which, at the same time, breached the rights of custody of the father (see Crowe).

11. In this case there is no issue that the mother removed the children from New Zealand without the knowledge or consent of the father.  I am satisfied that such removal was in breach of the father’s rights of custody which he was exercising at the time and would have exercised but for the children’s removal.

Regulation 16 findings

1. The following findings are made on the basis that the applicant’s evidence establishing them was not disputed by the respondent, either at any stage or at least by the time of final submissions in the trial:

   a)The application was filed within one year after the children’s removal from New Zealand on 4 April 2004 (Reg. 16(1)(b));

   b)The children are under the age of sixteen years (Reg. 16(1A)(a));

   c)

   The children habitually resided in a Convention country, New Zealand, immediately before their removal to Australia on 4 April 2014

   
   

   (Reg. 16(1A)(b));

   d)The requesting applicant father had rights of custody in relation to the children under the law of New Zealand immediately before their removal to Australia (Reg. 16(1A)(c));

   e)The children’s removal to Australia is in breach of those rights of custody (Reg. 16(1A)(d));

   f)At the time of the children’s removal on 4 April 2014 the father was actually exercising rights of custody and would have exercised those rights if the children had not been removed (Reg. 16(1A)(e)).

2. In these circumstances the combined effect of Regulations 15 and 16 (1) and (2) is that the Court must make an order for return subject only to the operation of subregulation (3) and the enlivening of discretion not to make a return order where a ground under that subregulation is established by the respondent.

3. On behalf of the mother it was contended that:

   a)Within the meaning of Regulation 16(3)(b) there is a grave risk that the return of the children under the Convention would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation; and

   b)Within the meaning of Regulation 16(3)(c) the child S objects to being returned to New Zealand; that her objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes; and that S has attained an age, and a degree of maturity, at which it is appropriate to take account of her views.

Factual background and central issues

1. According to the material filed in support of the application, the mother and father commenced their relationship in or around 1992/1993, married in January 2010 and separated on a final basis in or around March 2010.  However, their relationship involved various periods of separation and reconciliation.  Further there is some dispute regarding the exact final date of separation.  However the parties both signed a “separation agreement” (Annexure B to the father’s affidavit filed 21 October 2014) wherein it is acknowledged at [3] that the parents agreed to separate on 22 March 2010.  The parties are yet to divorce.  The two subject children are the only children of the relationship and they were both born in Auckland, New Zealand.

2. Both during the relationship and following separation, the children lived in a number of locations across New Zealand.  Following separation the mother continued to relocate residences with the children, which meant that the children, particularly the older child, often had to change schools.  Below is a broad and incomplete summary, drawn from the mother’s affidavit of when and where the mother relocated with the children:

   a)At the time of their marriage in January 2010 the parents and the children resided at K Street, Town L, NZ, (which the parents jointly owned) until their separation some six weeks later;[1]

   b)Upon separation, the mother relocated with the children to rental premises at N Street, Town N – 20 minutes away from their previous residence – where they remained for four months until July 2010 when the mother chose to relocate because, she deposes, the father kept sporadically showing up at her home;[2]

   c)In July 2010 the mother relocated with the children to Suburb O, Auckland, which was four hours away from Town N, where they remained until approximately August/September 2010 when the mother relocated following what the mother alleges was an incident of family violence;[3]

   d)In or around August/September 2010 the mother relocated with the children to Suburb P, Auckland (20 minutes away from Suburb O) to reside with her step-father, where they remained for six months before finding their own residence;[4]

   e)After those six months, the mother moved with the children to their own residence in Suburb Q (approximately one hour away from the previous residence), where they remained for two years and four months until the rent was increased;[5]

   f)The mother then relocated with the children to an apartment in Suburb R, Auckland (approximately 45 minutes away from Suburb Q) where they remained until November 2013;[6]

   g)On 7 November 2013 the mother relocated with the children to “[T Street]” (a reference to T Street, Town U[7]) to be , on the mother’s version, closer to the father (i.e. approximately four hours from Suburb R) where they remained for some six months until April 2014;[8]

   h)On 4 April 2014 the mother relocated with the children to Australia following a series of alleged incidents of family violence involving the father in March/April 2014.  Upon arriving in Australia the mother and the children remained living in Suburb C on the Gold Coast.[9]

   [1] Mother’s affidavit dated 1 October 2014 at [13], attached to her Form 2A Response filed 3 October 2014.

   [2] Mother’s affidavit dated 1 October 2014 at [13] and [15], attached to her Form 2A Response filed 3 October 2014.

   [3] Mother’s affidavit dated 1 October 2014 at [17]-[20], attached to her Form 2A Response filed 3 October 2014.

   [4] Mother’s affidavit dated 1 October 2014 at [20], attached to her Form 2A Response filed 3 October 2014.

   [5] Mother’s affidavit dated 1 October 2014 at [20], attached to her Form 2A Response filed 3 October 2014.

   [6] Mother’s affidavit dated 1 October 2014 at [20]-[22], attached to her Form 2A Response filed 3October 2014.

   [7] Oral Judgment of Judge Murray Hunt dated 7 October 2014 at [11] Annexure B to the Affidavit of Ms F filed 4 November 2014.

   [8] Mother’s affidavit dated 1 October 2014 at [22] & [42] at p 15, point 19, attached to her Form 2A Response filed 3 October 2014.

   [9] Mother’s affidavit dated 1 October 2014 at [37], attached to her Form 2A Response filed 3 October 2014.

1. The mother contends that her primary reason for frequently relocating with the children was the high level of conflict between the parents and her alleged fear of the father.  In particular, the mother deposes to various occasions when she asserts that the father arrived at her various homes unannounced and arguments would ensue between them. 

2. The father however disagrees and maintains, in summary, that the mother often invited him to attend her residence to see the children and on some occasions asked him to stay the night.  Further, the father maintains that the mother’s behaviour was often erratic in that she would ask him to move back in with her and the children, the father would then take steps to do so and then the mother would change her mind. 

3. Annexure C to the father’s affidavit filed 21 October 2014 is a letter dated 8 July 2010 from Patterson Law, solicitors who then acted for the father. Relevantly at [3] therein, reference is made to the mother relocating with the children to Auckland and the father’s acquiescence; [3] reads as follows:

   You have told [the father] that you wish to relocate to Auckland with the children and that this is to take place in the next week or so.  We have explained to [the father] that he has the right to apply to the Family Court to prevent the relocation of the children; however he instructs us that he does not wish to prevent this happening and therefore the relocation may take place.

Care arrangements post-separation

1. Following the parental separation in March 2010, the children lived primarily with the mother and spent time with the father, with the exception of late 2013 when the children spent a period of some six weeks with the father and then allegedly alternated every day between the parents for a period of a few months into 2014.

2. The extent of the children’s time with the father is in dispute.  The father maintains he spent regular time with the children, while the mother maintains that he was unable to do so due to his work commitments.  At [48] of his affidavit filed 21 October 2014, the father deposes to the following care arrangements being put in place post-separation once the Mother relocated back to “[T Street]” in November 2013:

   As they all settled in things were great and we agreed that the girls needed routines and I would take them every Tuesday and Thursday and every 2nd weekend.  This arrangement was in place until [the mother] took the girls to Australia.

3. The mother denies the existence of any shared custody arrangement, as contended for by the father, and maintains that the father’s time was “only irregular, ad hoc time spent between [the father] and the children from separation until the time he retained them in his care.  Thereafter the time returned to ad hoc and irregular dictated by [the father] and his wants and needs.”[10]

   [10] Mother’s affidavit dated 1 October 2014 at [42] at p 15, points 20 and 21, attached to her Form 2A Response filed 3 October 2014.

4. Annexure B to the father’s affidavit filed 21 October 2014 is a copy of the separation agreement entered into by the parties on 3 June 2011.  The majority of the agreement pertains to the distribution of property, however at [3] of that agreement the following reference is made with respect to the care arrangements for the children and is as follows:

   3.        Care arrangements for the children

   3.1The parties agree that their children shall be in the primary care of [the mother] with [the father] having them in his care from time to time, the precise times and periods of which are to be agreed between the parties.

   3.2The parties acknowledge that they will fully consult with each other in relation to guardianship issues affecting the children.

   3.3 The parties agree that they will adopt a flexible and reasonable attitude with each other regarding any changes to the child care arrangements for the children.

5. Further, at [4] of the separation agreement, the following reference is made to the issue of child support and is as follows:

   4.        Child support

   4.1The parties have agreed that [the father] shall be required to pay child support to [the mother] for the care of the children.

6. The mother deposes in her affidavit (attached to her Form 2A Response) filed 3 October 2014 at [46], that the Father “…has never made financial contributions towards the children’s care and upbringing either privately or by way of Child Support on separation.”

Grave risk of harm

1. The mother contends that the father was physically and emotionally abusive toward her, often in the presence of the children or when the children were in the house.  In particular, there are three instances of family violence which the mother asserts led her to relocate to Australia and resulted in the father being charged for three counts of assault against the mother.  Ultimately the father was acquitted of those charges.  The three incidents are summarised below.  The father maintains that the mother’s allegations against him with respect to violence are “completely untrue”.  The father deposes “The only violence my daughters were ever subjected to while I was present, living with them or visiting, was the emotional and verbal outburst from the mother, and occasional times when she would physically try to attack me.”[11]

   [11] Father’s affidavit filed 21 October 2014 at [30].

   (1)Thursday 13 March 2014

   The mother’s version

   On the mother’s version (as contained at [23(a)] of her affidavit) at approximately 4.30 pm on this date, the father attended her home while she was there with the children.  He allegedly demanded that the children get into his motor vehicle, which the children did, before he entered the mother’s home and pushed her to the kitchen floor.  While she was on the floor, the father allegedly bent over her and pushed his thumb into her throat, which prevented the mother from breathing, and said words to the effect of “You’re a bad mother”; “You’re not welcome in this town”; “You’re a whore and a maggot”; “The kids hate you”; “[Ms V] (the father’s partner) is a better mother than you will ever be.”  The father then left the mother’s home. The father’s partner, Ms V, was in the car in the driveway during this incident.

The father’s version

On the father’s version, he and Ms V arrived at the mother’s house when the children came running out.  Allegedly S was crying and B informed him that the mother “had just smashed their IPad and was yelling and screaming and smashing up things in the house.”[12]  The father then instructed the children to get their bags because they were leaving. While the children were collecting their things the mother allegedly exited the house and started verbally abusing him about why he was late to collect them.  The father maintains that the mother was drunk on this occasion and had her mobile telephone in her hand and attempted to “smash” him in the head with it.  The father then told the children to get into his car and the father removed the mobile telephone from the mother and got back in the car and left.[13]  The father denies ever entering the mother’s home as she alleges.

[12] Father’s affidavit filed 21 October 2014 at [62].

[13] Father’s affidavit filed 21 October 2014 at [62]-[63].

(2)      Friday 14 March 2014

The mother’s version

The mother contends that on Friday afternoon on 14 March 2014, she was walking home when the father pulled up beside her in his motor vehicle and said words to the effect of “You’re a maggot and a fucking bitch”.  The mother allegedly ignored the father and he drove off.  When the mother arrived home the father’s motor vehicle was parked in the mother’s driveway and the father was waiting for her inside the residence.  The mother contends that the father then said to her “[B] asked me to see how you were”.  The father then allegedly got a pillow and hit the mother approximately 20 times in the head whilst saying words to the effect of “Fucking apologise.  Do it now or I won’t stop.” When the mother asked “what for?” the father replied “Say I didn’t have an affair with [Ms W].”  The mother deposes at [23(b)] of her affidavit, “I did not try and stop him for fear that the assault may become worse however I also refused to give him an apology.”  The father then allegedly said words to the effect of “I’ll just get a rope and a razor and you can end it now” before leaving the mother’s house.

The father’s version

The father maintains that on Friday morning on 14 March 2014 he and Ms V dropped the children to school and then travelled back towards his (and his parents’) home when they saw the mother walking on the footpath.  The father deposes that he “went to slow down to let her know I would be picking the girls up after school as they didn’t want to go home after what had happened the day before.  However when she [the mother] saw us the screaming and abuse started so I just continued driving.” The father subsequently picked the children up from school that day and they remained in his care until Wednesday 19 March 2014.[14]

[14] Father’s affidavit filed 21 October 2014 at [64]-[71].

While the children were in his care the father deposes to another incident which took place on Sunday 16 March 2014 which resulted in police attendance at his home.  On that occasion, the father contends the mother attended his residence, allegedly intoxicated, saying she wanted the children.  The father allegedly replied that he would drop them off to her “around 4-ish as per normal arrangement, which completely agitated her and she just started screaming at me [the father], Mum and [Ms V]…”[15]  The mother then allegedly sat down at the picnic table at the front of the house and started screaming “a barrage of verbal abuse” calling the paternal grandmother a “cunt” and Ms V an “evil bitch”.[16]  The father deposes that at [68] of his affidavit filed 21 October 2014:

[15] Father’s affidavit filed 21 October 2014 at [67].

[16] Father’s affidavit filed 21 October 2014 at [67].

Eventually another neighbour who lives 3 properties away, [Mr X], who is also a Detective at [Town L] Police Station, came down to help defuse the situation. It took him approx. ¾ hour to calm her down and leave the property, however she did return about an hour later once again yelling and screaming briefly before she stormed off.  Her behaviour was psychotic and I could smell that she had been drinking.  My lawyer contacted [Mr X] who sent a reply about this – annexed marked E.

(Original Emphasis)

Detective X’s statement (at Annexure E of the father’s affidavit) is relatively consistent with the father’s account, however he denies the mother smelling of alcohol but does acknowledge that she was emotional.

(3)      Friday 28 March 2014[17]

The mother’s version

The mother alleges that at 7.30 am on this date, the father attended her home and advised her and the children that his father (the paternal grandfather) had passed away earlier that morning.  The mother subsequently dropped the children to school before attending the father’s residence at approximately 10.30 am to pass on her condolences to his family.  While the mother was there an argument arose between the mother and the father’s partner, Ms V, which caused the mother to leave with the father.  They both walked to a neighbour’s residence however once there the mother decided she would go home.  The mother then went to another neighbour’s home, namely Mr Y, where she remained for 30 minutes.  Upon the father’s arrival at Mr Y’s residence the mother went home, allegedly because the Father appeared agitated.  The father followed her home, and on the mother’s version, demanded to have sex with her while closing all the curtains in her bedroom.  When the mother refused, the father became aggressive and “began throwing items of furniture around including my lazy boy recliner chair” before hitting the mother with a closed fist in her leg which caused her to fall to the floor.  The mother maintains the father then threw her against a wall.  At [23(c)] of her affidavit the mother deposes:

I felt like a ragdoll as [the father] threw me around my residence for approximately 15 minutes.  Following the incident I was left with a very large bruise to my right thigh where [the father] had punched me, a bruise on the inside of my right knee and bruises to my arms and body where he grabbed me and threw me around.

[17] Father’s affidavit filed 21 October 2014 at [74]-[79].

The father’s version

The father agrees that he attended the mother’s home in the morning and that the mother subsequently went to his residence, however disputes that she was there to pass on her condolences.  On his version, the father maintains that the mother “didn’t even comment on Dad’s passing” and merely asked to use the phone, which he allowed, before he asked her to leave because of her behaviour a few weeks prior.  Upon asking her to leave, the mother allegedly became angry and started screaming and calling the father a loser and Ms V “a slut and a maggot”.[18]   The father then told the mother to leave and escorted her to the letter box outside before he returned to their visitors.

The father then attended Mr Y’s home, allegedly because he wanted to ask him why he brought the mother to the father’s property. When the father realised the mother was there, he asked the mother for B’s netball uniform as B needed it for a game the next day. The mother then left Mr Y’s and the father waited a few minutes before walking over to the mother’s property to get the uniform.  At [78] of his affidavit filed 21 October 2014 the father deposes that the following events then took place upon his arrival at the father’s residence:

[The mother] came outside and said she couldn’t find it but I could tell she was lying. I told her “[The mother’s given name] just so you know you are not welcome at Mum & Dad’s house, and you, your Mother and Brother, are not welcome at the funeral.  We, being myself, Mum, [Ms V], my sisters have had enough of the behaviour and the drama.”  She launched at me trying to hit me in the head, I grabbed her by the arms to try to stop her, there was a struggle and she fell back, I screamed at her and said “what the fuck is wrong with you, you’re acting like a mental person, you smell of wine and it’s not even lunchtime”.  She told me to fuck off back home to [Ms V] (my partner) the slut. I said I was happy to, and walked back over to [Mr Y’s].

[18] Father’s affidavit filed 21 October 2014 at [76].

1. The mother reported these three incidents to the New Zealand Police and on 31 March 2014, she was allegedly advised by the police that they intended to arrest and charge the father but would wait to do so until 3 April 2014, being the day after his father’s funeral.  At [25] of her affidavit the mother deposes:

   The police were also aware that at the time, I had allowed the children to spend time with [the father] between 31 March 2014 and 3 April 2014 to mourn the loss of his father.  However, based on the date that they intended to attend upon him, Police advised that [the father] would be arrested on the morning of 3 April, 2014 and therefore I should attend upon his residence later in the afternoon on 3 April 2014 to collect the children in circumstances where by that stage [the father] would be in police custody.

2. The father was prosecuted for assault offences arising out of these episodes but was ultimately acquitted.  Of course, as Counsel for the mother emphasised, this simply means that the criminal standard of proof was not met.

Circumstances of Removal

1. The children were in the father’s care from 31 March 2014 until 3 April 2014. The mother deposes that at approximately 2.00 pm on 3 April 2014 she and the maternal grandmother, Ms Z, attended the home of the paternal grandparents for the purpose of collecting the children.  On the father’s version, the mother and maternal grandmother attended the residence stating that they would be taking the children for a period of two hours.[19]  On either version, the father refused and an argument and confrontation ensued. 

   [19] Father’s affidavit sworn 25 June 2014 at [8(c)], attached to Form 2 Application filed 24 July 2014.

2. On the mother’s account, when she and the maternal grandmother arrived at the father’s home, the maternal grandmother initially approached the father’s residence while the mother remained in the car.  When the maternal grandmother reached the front door she was confronted by the father who allegedly exited the house and began yelling at her words to the effect that she would not be taking the children.  While the father was saying this, the mother allegedly saw the father put the children into the backseat of his car.  Around this time the mother exited her vehicle and began walking up the driveway towards the father’s car.  At [31] the mother deposes, “I could see that [the father] had noticed that I was walking up the driveway and he immediately jumped into his vehicle and started the engine.  He then quickly drove down his driveway towards me.  I thought that he was going to stop however realised that he was not and had to quickly jump out of his way for fear of being hit. [The father] continued driving out of the property.”

3. On the father’s version, upon their arrival both the mother and the maternal grandmother were aggressive and tried to forcefully remove the children.  The father contends the maternal grandmother tried to physically drag S from the father’s car, however S “jumped out the other side door,” at which point the maternal grandmother got into a verbal argument with the father’s Uncle AB.[20]  The father then deposes that he instructed the children to get into his car, and as they began driving down the driveway they were stopped by the mother who was “smashing on the car window screen with her fists and swearing abuse.”[21]  The father maintains he did not drive at the mother, rather he drove away to the Town BB Police Station where he spoke to Constable CC and explained the incident and asked her to attend upon his home to remove the mother and the maternal grandmother.

   [20] Father’s affidavit filed 21 October 2014 at [85].

   [21] Father’s affidavit filed 21 October 2014 at [87].

4. Shortly thereafter the police attended the father’s residence and allegedly advised the mother and maternal grandmother to return home and wait for a further response from them, which they did.  Upon returning home the mother deposes to seeing the father drive past her residence twice with the children in the backseat.  A short time later, at approximately 3.30 pm the father’s niece and her husband delivered the children to the mother’s residence.[22]

   [22] Mother’s affidavit dated 1 October 2014 at [33]-[35], attached to her Form 2A Response filed 3 October 2014.

5. On the father’s account, he left the police station with the children and drove around to calm them down.  The father contends that once he reassured the children that they did not have to go back to their mother’s until Friday as previously arranged, they calmed down and they went to get ice cream before returning to his house.  Upon their arrival home, the father deposes in his affidavit filed 21 October 2014 at [89]-[93]: 

   89.…Constable [CC] was still present and approached me and said she wanted me to go with her to talk.  I asked if this could wait, given the circumstances.  She refused and stated if I didn’t go with her now, she would arrest me.  She said she would take me to the local station but after we drove away she instead took me to the [Town L] Police station and charged me with three assault charges, interviewed me, and said she would not release me till the morning because I was upset.

   90.I was released on Police Bail the morning of April 4th and I went straight to [Town BB] Primary school looking for my daughters, but they were not in attendance.  I asked at the school office and the office lady said they hadn’t turned up today.  In my heart I knew they were going I just didn’t know where.

   91.[The mother] says she did not tell the Police she was going to Australia, but my mother confronted Constable [CC], asking the whereabouts of her grandchildren.  Constable [CC] first refused any knowledge until Mum produced the letter from WINZ, and Constable [CC] changed her story and stated that no one was meant to know.  She told my Mother she wasn’t to worry as they were on return tickets.

   …

   93.[The mother] made her allegations to have me arrested after she felt she was treated badly by me and my family on my father’s death.  She was [sic] made arrangements with the police to know when I would be arrested so she could take the children away without me knowing.  She first made her allegations on 16 March, but she kept coming to my mother’s home and kept abusing me and my family right up till she took the children away. She was preparing to go the whole time.

1. The father subsequently learned through friends that the mother and the children were staying with one of the mother’s friends on the Gold Coast.  The father had no contact with the children following 3 April 2014.  Further, for reasons outlined above it appears that he was not made aware of, nor did he consent to, the children’s removal from New Zealand.

2. With regard to the mother’s intention to relocate to Australia, at [36]-[38] the Mother deposes:

   36.After the children were returned to my residence I was extremely upset and frightened for my safety and for the safety of the children. Feeling as if I had no other alternative I made the decision that I would immediately leave my residence and relocate with the children somewhere else.  I did not know where I would go however knew that I had to get as far away from [the father] as I possibly could and as quickly as I could.  With the assistance of my mother I packed one small carry bag of belonging’s [sic], locked up my residence and left to [Town DD].

   37.On 4 April 2014, I had decided that I would relocate from New Zealand to Australia.  Again with the assistance of my mother I purchased tickets from Auckland Airport to Coolangatta Airport in Queensland, Australia which was scheduled to depart at [sic] on Friday, 4 April at 1:20pm.  Accordingly, the children and I caught our flight to Australia.  Exhibited hereto and marked TMC01 are a true copy of our tickets purchased on 4 April 2014.

   38.After [the father’s] arrest by Police I made the decision to pick the children up and move to Australia for fear of my own safety and for that of my children.  The decision to move to Australia was not pre planned.  It was a sudden decision made by me for fear that he might physically harm me or the children because of the circumstances of his arrest.  I knew that I wanted to get as far away as I possibly could and therefore my options were either to relocate to as far away as possible in New Zealand or to Australia.  I ultimately decided to relocate to Australia because I had a very close friend who was residing on the Gold Coast who could assist me.

Father’s Criminal Trial

1. The father pleaded not guilty to the three assault charges and was represented by counsel at the trial at the District Court in New Zealand.  The hearing took place over three days on 17 September 2014, 2 October 2014 and 7 October 2014 with an oral judgment being delivered by Judge Murray Hunt at the conclusion of the last day of trial.  The mother travelled to New Zealand on 16 September 2014 for the purpose of giving evidence at the trial before returning to Australia on 18 September 2014.[23]  A copy of his Honour’s oral reasons for judgment is Annexure B to the affidavit of Ms F filed 4 November 2014.

   [23] Mother’s affidavit dated 1 October 2014 at [45], attached to her Form 2A Response filed 3 October 2014.

2. I record that in addition to the three incidents of alleged family violence for which the father was charged for assault (detailed above) the oral reasons also make reference to two other incidents of family violence concerning the mother and the paternal grandmother, Ms J Rovo, which took place at the children’s school (see [51] in reasons).

3. Commencing at [72] of his reasons Judge Hunt summarises his findings before ultimately concluding (at [76]), “… I am not satisfied in respect of each charge that all of the ingredients are proved.”  Commencing at [74] of the reasons his Honour concludes:

   74.I found the demeanour of the complainant [the mother] hard to reconcile with many of the actions which are described, many of which she was unable to recall or would not acknowledge.  These were described by various witnesses in a way that I found credible. [The mother] repeatedly put herself into situations where confrontation was likely or inevitable and despite, for example, the warnings of Mr [Y] went down to the family house on 28 March although there had been a previous incident on the 16^th. 

   75.The question of whether or not she was apprehensive or concerned about her situation so far as [the father] is concerned is simply not clear to me.  I am left in a state where I am highly suspicious of the defendant [the father].  The motivation for [the mother] to make these matters up seems to have been attributed to her desire to leave the country.  It is by no means clear when she formed that desire or in what way the allegations and the matters that she has given evidence advanced at, so I remain suspicious.

   76.There are plainly elements of power and control within the relationship.  Questions of the phone having been removed and then not returned, the way in which contact was managed, even the direction that she was not to attend the funeral suggests to me that the defendant was not averse to demonstrating his power or control over [the mother].  The conversation, as I have said, about the netball seams incongruent with the situation where matters relating to the funeral had just been discussed but I am not satisfied in respect of each charge that all of the ingredients are proved.

   77.I can say to you, Mr [Rovo], I am highly suspicious of what went on between you and [the mother] and had the standard of proof been lesser you might have found yourself in some difficulty but it is not. Mr Powell (of Counsel) has done a good job for you, he has satisfied me that there is room for doubt, and so I discharge you on each of the charges.

4. It is recorded at [48] in the reasons that “an admission of some importance” concerning the incident on 28 March 2014 was the fact that “there was no examination of the inside of the property [by police] to determine whether or not the damage described by the complainant [the mother] had occurred, or the layout of the property was such that any of the factual allegations made by the complainant could be verified.  It seemed to me that at least that there could have properly have been a photograph or an examination to determine if the wall in the lounge was damaged in the way alleged.”[24]

   [24] Oral Judgment of Judge Murray Hunt dated 7 October 2014 at [48] Annexure B to the Affidavit of Ms F filed 4 November 2014.

5. There are also issues raised concerning the father’s drug use, for which he appears to have been convicted of associated drug charges, and the father’s allegations that the mother consumes excessive amounts of alcohol and is mentally unstable (see [101]-[102] of the father’s affidavit filed 21 October 2014).

6. Even though these were filed on 4 December 2014, only the day prior to the trial, I gave leave to the mother to rely upon her own further affidavit and that of her witness Ms EE over the objection of the applicant.  The mother’s further affidavit attached statements of other persons. 

7. Counsel for the applicant Central Authority elected not to cross-examine the mother or her witnesses.  It was contended by counsel for the applicant in final submissions that even putting the mother’s evidence and case at its highest, she did not discharge the onus of proof she bears with respect to making out the grave risk exception discussed below.

8. In circumstances where the mother and her witnesses were not challenged in cross-examination, despite the applicant having the opportunity to so do, it would seem to follow that the mother’s version of events, particularly those relevant to the grave risk exception in respect of which she bears the onus of proof, cannot be readily rejected or not given weight.  Put another way, there would need to be good reason to prefer the father’s version to that of the mother in circumstances where the opportunity to test or challenge the mother in cross-examination was not taken.  I proceed on that basis.  That noted, there were some apparent internal inconsistencies or inherent improbabilities or lack of detail within the mother’s evidence which are relevant.

Relevant law: grave risk exception

1. Regulation 16(3)(b) relevantly provides as follows:

   (3)      A Court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

   …

   (b) There is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation;

2. In DP v Commonwealth Central Authority: JLM v NSW Department of Community Services (2001) 206 CLR 401 (“DP and JLM”) the High Court considered two cases in each of which the exception in Reg. 16(3)(b) was raised by the person opposing the order for return.

3. Whilst Reg. 16 and the specific subregulation has been amended since the High Court’s consideration of it in its previous form it would seem that for all relevant purposes the provisions are identical in effect. 

4. At [40] of the applicant’s written submissions; in addressing the interpretation of the subregulation and before reference is made to the High Court’s decisions in DP and JLM; there is a submission as to a significant body of case law and “clear weight of authority in other countries” (both of which are referenced) which it is submitted “supports the section having a narrow operation”.  Reference is also made to a number of Australian decisions, also pre-dating the decisions of the High Court referred to, submitted to reflect the adoption of “a very similar approach”.

5. In light of the authoritative pronouncements of the High Court in DP and JLM as to the interpretation of Reg. 16(3)(b) it is in my judgment unhelpful, and potentially misleading, to refer to decisions of other countries and of this Court which pre-date the decisions of the High Court.  Many of those authorities have expressly held that the provision, or its equivalent article in the Convention, is to be given a “narrow interpretation”.  That approach was expressly rejected by the High Court.

6. Whilst, as noted, the submissions of the applicant carefully refer to narrow “operation” rather than narrow “interpretation”; in the context of reference to the cases referred to in the submissions there is potential to confuse the approach to the proper interpretation of the provision as opposed to its proper application.

7. As Gleeson CJ observed in DP at [9]:

   To my mind, it is unhelpful to say that reg. 16(3)(b) is to be construed

   narrowly.In a case where there is no serious question of construction

   involved, such a statement may be misunderstood as meaning that the

   provision is to be applied grudgingly.  The task of the decision-maker is to

   give effect to the regulation according to its terms.  The meaning of the

   regulation is not difficult to understand; the problem in a given case is

   more likely to be found in making the required judgment.  That is not a

   problem of construction; it is a problem of application.  It may exist at the

   level of finding the primary facts relevant to judgment; or at the level of

   deciding the conclusion to be drawn from the valuating known facts.  What

   is made clear, for reasons that are explicable by reference to the nature and

   purpose of the regulatory scheme, and the Convention to which it gives

   effect, is that the discretion not to make an order for return only exists

   where there is a grave risk of harm (the gravity being emphasised by the

   cognate reference to an intolerable situation), and the onus of establishing

   that circumstance is upon the person opposing return.

8. Whilst Gleeson CJ dissented in the result in both of the cases referred to there is nothing inconsistent in the above statement with the conclusions reached by the plurality.

9. At [41] in DP under the heading “narrow construction?” the plurality of Gawdron, Gummow and Hayne JJ said:

   41.In the judgment of the Full Court of the Family Court which gives rise to the first of the matters now under consideration (DP v Commonwealth Central Authority) it was said that there is a “strong line of authority both within and out of Australia, that the reg. 16(3)(b) and (d) exceptions are to be narrowly construed.  Exactly what is meant by saying that reg. 16(3)(b) is to be narrowly construed is not self-evident.  On its face reg. 16(3)(b) presents no difficult question of construction and it is not ambiguous.  The burden of proof is plainly imposed on the person who opposes return.  What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”.  That requires some prediction, based on the evidence, of what may happen if the child is returned.  In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to enquire into the best interests of the child.  The exception requires courts to make the kind of enquiry and prediction that will inevitably involve some consideration of the interests of the child.

10. Further, at [43] the plurality said:

    43.Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence.  The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.

11. At [44] the plurality expressly rejected the conclusion that the subregulation is to be given a “narrow” rather than a “broad” construction.  However at [45] the plurality observed:

    45.That is not to say, however, that reg. 16(3)(b) will find frequent application.  It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety.  That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence.  Regulation 16(3)(b) and ART 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.

12. Some important matters of context inform the consideration of whether or not the mother has discharged the onus she bears in making out the exception under this subregulation.

13. First, this is not a case of a primary carer leaving a country foreign to her so as to return to her country of origin.  To the contrary, New Zealand is the mother’s country of origin.  The case proceeded on the basis that if a return order is made the mother would also return to New Zealand with the children and they would all thus be returning to their country of origin.

14. Second, and related to this, this is not a case where there exists evidence of the mother likely facing any barriers to accessing, in her country of origin, either legal assistance or the courts in that country or relevant authorities in New Zealand.  To the contrary, the evidence reveals the mother’s historical ability to use lawyers from time to time in dealing with matrimonial issues; as well as engaging with police services and the courts of New Zealand in dealing with the assault charges brought immediately before the mother relocated with the children to Australia.

15. In Murray v Director, Family Services (ACT) (1993) FLC 92-416, Nicholson CJ and Fogarty J (with whom Finn J agreed on the relevant point at p 80,259) observed:

    As His Honour pointed out, New Zealand has a system of Family Law and provides legal protection to persons in fear of violence which is similar to the system in Australia. 

    It would be presumptuous and offensive in the extreme, for a Court in this country to conclude that the wife and the children are not capable of being protected by the New Zealand courts or that the relevant New Zealand authorities would not enforce protection orders which are made by the courts.

16. Third, and related to this, this is not a case of recent parental separation.  On either version, the parents finally separated some years ago.  There is no evidence that notwithstanding accessing the courts and protective authorities in New Zealand the mother has been unable to secure protection from the harm she alleges.  To the contrary, for much of the period post-separation the mother has sought to make changes of her location but at times those changes have been to move closer to where the father resides or unrelated to any role he has played.  There is no body of evidence that the mother repeatedly sought the involvement of police authorities or the courts of New Zealand and, notwithstanding that involvement there, has been failure to secure protection from the harm she alleges. 

17. Put another way, despite all she has to say about the post-separation relationship between herself and the father (and on either version it is a dysfunctional relationship) there is no evidence of the mother seeking to invoke either the domestic violence laws or the family law of New Zealand to deal with what she says is the father’s behaviour.

18. Finally, it is to be noted that the father has provided an undertaking to the Court that he will engage the Courts of New Zealand to determine parenting arrangements in the event that a return order is made.  It is clear that the Care of Children Act 2004 (NZ) contains similar relevant provisions to the Family Law Act 1975 (Cth) in determining parenting arrangements. Whether or not the father observes his undertaking there is no reason to suppose that the mother cannot or will not engage the appropriate court in New Zealand for parenting proceedings to ensue upon a return order being made; and there is no reason to suppose the mother cannot engage the protection of protection orders under New Zealand law.

19. Cross-examination of the father before me did not yield, in my judgment, any relevant concessions by the father consistent with the mother’s case mounted in support of this aspect of her case. 

20. Putting the mother’s case on this aspect at its highest, there is simply no evidence of the mother historically engaging the relevant laws of New Zealand over the period from separation until, ultimately, the unsuccessful assault charges.  That is, there is no evidence of the mother bringing proceedings under New Zealand family law to regulate or formalise parenting orders.  There is likewise no evidence historically of the mother actively seeking that a protection order or a domestic violence order be made. 

21. In this respect there is a lack of particularity about the mother’s evidence.  Whilst in her more recent affidavit she refers to attending at police stations she gives no detail of seeking actively to obtain relevant orders against the father to prevent repetition of the conduct of which she now complains.

22. There is also evidence of the mother acting seemingly inconsistently or incongruently with the allegations she makes.  An example is the mother’s 7 November 2013 relocation which she acknowledges was made so that she and the children would be closer to the father.  That was some three and a half years post-separation.  It seems incongruent that on the one hand the mother would say that her moves were necessitated by the need to remove herself and the children from the malevolent conduct of the father yet as at 7 November 2013, she was relocating herself and the children to be closer to the father.

23. Reference has earlier been made to the negotiated agreement between the parents concerning property issues.  That evidence shows an ability for the mother to obtain access to legal advice and notwithstanding that she had lawyers acting for her at the time, she did not seek to formalise any parenting orders under New Zealand law.

24. Whilst counsel for the mother cross-examined the Regulation 26 report writer Ms G in order to obtain evidence that the children were likely to be at “grave risk” of suffering psychological harm if there were to be a continuation of their exposure to parental dysfunction and hostility if they returned to New Zealand; it cannot in my judgment be assumed that a return order will, predictably, bring about that result. 

1. That is because, first, the father has given a solemn undertaking to this Court to bring parenting proceedings in New Zealand if a return order is made.  Second, the mother did finally cause assault charges to be brought against the father immediately before her departure from New Zealand.  She has subsequently applied in Australia for a protection order under local domestic violence laws.  Whilst that was unsuccessful because the father is not a resident here, the point is that the mother has demonstrated that she can act to engage relevant laws and there is no reason to predict that the mother will not do so, that is, engage the relevant laws of New Zealand, if a return order is made. 

2. Whilst counsel for the mother also sought to place emphasis upon the father’s criminal history and in particular his drug conviction for the supply of methamphetamines; I am not persuaded that this of itself means that the children would be at grave risk within the meaning of the subregulation.  If a return order is made the children’s mother and primary carer will return with them to New Zealand.  The return order is to the country of New Zealand, not to the father’s care.  Historically, the mother has herself permitted the children to be in the father’s care. 

3. I am not persuaded that the mother has discharged the onus she bears to make out this ground or exception under the Regulations. That is, I am not persuaded that in all the relevant circumstances there is a grave risk that the return of the children to New Zealand would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

Regulation 16(3)(c) – objection to return

1. Regulation 16(3)(c) relevantly provides:

   (3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

   …

   (c)         each of the following applies:

   (i)the child objects to being returned;

   (ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

   (iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views.

2. As already noted, the trial of the application was delayed to allow a report to be obtained under Regulation 26.  That report was provided by Ms G, psychologist who undertook interviews on 10 November 2014. 

3. Ms G interviewed only the older child S, it being acknowledged that B was not of an age or level of maturity at which it would be appropriate to take account of her views.

4. Ms G’s report dated 17 November 2014 was before the Court and Ms G was cross-examined by both parties at the trial.

5. As was pointed out by Ms G in both her written report and oral evidence, as at the time of Ms G’s interview of S on 10 November 2014, S had not seen, or communicated with, the father since her removal from New Zealand in April 2014.  That is, some seven months had elapsed since the children were removed by the mother from New Zealand to Australia and over that period they had had no time or communication with the father. 

6. It was in that context that Ms G, in both her written report and oral evidence, gave some emphasis to the likelihood that S’s expressed views are, at least to some extent, informed by or influenced by the mother’s own views and/or S’s perceptions as to the mother’s position.

7. In this context it is instructive to observe what S had to say to Ms G when she first found out, after being removed from New Zealand to Australia in April 2014, of her mother’s intention not to return to New Zealand.  This is recorded at [11] of Ms G’s report as follows:

   11.[S] described first finding out that she would not return to New Zealand.  Initially she thought they were having a holiday in Australia.  She recalled saying to [the mother] that “I couldn’t wait to show my friends” some gifts and other pictures but that her mother explained they were not going back.  [S] said she was so upset that she went to the bedroom and sat there but “eventually I got hungry”.  [S] said she thought she was so upset because “I grew up in New Zealand. I’m used to it.  When you grow up somewhere that you love, it’s hard to move away.  I didn’t know so I couldn’t be prepared.  I told mum I was sad.”  [S] thought she had been sad for a couple of weeks but she was not sad about living in Australia anymore.  She had a lot of friends and loved her school.  [S] said [B] had not been upset about not knowing she was coming to Australia because “[B] just adapts to things”.

8. It is readily apparent, if S’s statements are taken at face value, that at least at the time of which she was speaking, S not only could not be said to object to returning to New Zealand, but was actually initially opposed to the idea of remaining in Australia. 

9. In [12] of her report Ms G refers to S being told about incidents by the mother.  Likewise at [15] Ms G refers to “…allegations and stories contained in the affidavit material which she [S] said had been explained to her by [the mother].”

10. In both her written report and oral evidence Ms G expressed some reservations about S’s level of maturity in terms of her expressed views.  For example, at [26] of her written report Ms G refers to S lacking the age or level of maturity where her views are completely independent of the parent; and expressing the opinion that S is not yet old enough to appreciate the implications of “never returning to New Zealand.”

11. Ms G referred to the risk of cumulative harm that could be caused to children by repeatedly being exposed to parental conflict and dysfunction.  Ms G assessed that S identified Australia as giving her stability; and that there were elements of S being settled and happy, and life being predictable, in Australia.  However, Ms G emphasised in her oral evidence that these elements did not necessarily relate directly to the nation state in which S lived.  Ms G referred to the feature that if S experienced similar schooling; housing; and disengagement from the parental conflict in New Zealand in future then S’s feelings of being settled and happy and life being predictable would be similar as currently in Australia.

12. In other words, Ms G emphasised that historically New Zealand had been a place of conflict between the parents to which the children had been exposed whilst there had been an absence of parental conflict whilst the mother and children were in Australia.

13. To similar effect, as already referred to, Ms G identified the potential for serious risk of emotional and physical harm for S and indeed to both children if a return to New Zealand heralded a return to exposure to parental conflict as had occurred historically.  That is, in that context Ms G postulated as to the children returning to the “exact situation” as operated previously.  I have earlier dealt with this aspect of the case in discussing the grave risk exception.

14. Ms G referred to S having a lack of stridency in her views.  Ms G did not express the opinion either in her written report or in her oral evidence that S presently shows a strength of feeling in her expression of objection which is beyond the mere expression of a preference or of ordinary wishes.  In her oral evidence Ms G expressed some uncertainty as to what degree S “objects” to returning to New Zealand currently.  Ms G speculated that it may well be probable that if a return order is made and S confronts the actuality of returning to New Zealand that she would show a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

15. In that context Ms G emphasised that a lack of certainty as to “what happens next” would be relevant to S’s perception.

16. Taking Ms G’s written and oral evidence with the other evidence in the case, I am not satisfied that S’s expressed objection to returning to New Zealand currently shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

17. In my judgment it is not sufficient for there to be expert evidence of a possibility or probability in future, necessarily speculative, as to a child’s objection showing a strength of feeling beyond the mere expression of a preference or of ordinary wishes for the subregulation to be made out.  That is, the Court must be satisfied by persuasive evidence that the child already demonstrates a strength of feeling of the requisite kind for the subregulation to be made out.

18. In any event, for reasons already discussed, it cannot be assumed that a return order involving in this case the mother and children returning to the country of New Zealand where relevant proceedings are to ensue means that it is in fact a consequence of the return order that the children will be returning to the same level of parental dysfunction, unregulated, as has occurred historically.

19. In both her written and oral evidence Ms G referred to geographical distance between the parents as being a protective measure but of course formal orders of a court are likewise a relevant protective measure.

20. I am therefore not satisfied that this ground of exception is made out by the mother who carries the onus.

21. Even if I am wrong about that, I accept the submissions on behalf of the applicant that even if this exception were made out with respect to S it gives rise only to a discretion not to make a return order for S.  This ground of exception does not apply to B.  That is, that a return order would still have to be made with respect to B unless it could be said that an order for her return would place her, in the circumstances, in an intolerable situation.

22. In the circumstances of this case, even if I were satisfied that this exception was made out with respect to S, I would not be inclined to exercise the discretion against making a return order.  It seems to me that on the evidence as a whole it is obvious that the mother will return to New Zealand if an order for return is made with respect to either or both children.  Put another way, it is clear enough that the mother would not contemplate B’s return to New Zealand alone and that if an order for her return were made the mother would also return to New Zealand with S.

23. In any event, for reasons already discussed, I am not satisfied that the mother has made out this ground of exception and therefore the discretion not to make a return order is not enlivened.

Conclusion

1. I am satisfied that the return order sought by the applicant ought be made. 

2. Whilst the mother sought some delay, if a return order were to be made of the date of return having regard to her current working arrangements and tenancy arrangements in Australia; there are overwhelming reasons for the return not being delayed.  First, the object of the Convention is to secure the prompt return of children and these children were wrongfully removed from New Zealand in April 2014.  There is also the need for their arrangements to be secured for the commencement of the New Zealand school year in 2015.

3. I therefore accept the submission on behalf of the applicant that return should occur no later than 14 days after the return order is made and for these reasons will make that order.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 5 January 2015.

Associate: 

Date:  5 January 2015