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

[2014] FamCA 808

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & SHIREE (NO. 2) [2014] FamCA 808

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application under the Hague Convention for the return of the children to New Zealand – Where habitual residence in New Zealand is established – Whether the requesting applicant acquiesced to the children remaining in Australia – Whether the residual discretion ought be exercised

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

Department of Community Services, Community Services & Raelson [2014] FamCA 131
Department of Health and Community Services, State Central Authority v Casse (1995) FLC 92-629

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

RESPONDENT: Ms Shiree

FILE NUMBER: BRC 6301 of 2014

DATE DELIVERED: 22 September 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 22 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: Crown Law

FOR THE RESPONDENT: In person

Orders

It is ordered that:

1. The Applicant’s Application in Form 2 filed 17 July 2014 be dismissed and the proceedings be removed from the pending cases list.

2. The Order of this Honourable Court dated 1 August 2014 be discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6301 of 2014

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES

Applicant

And

Ms Shiree

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in Form 2 filed on 17 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 with respect to the children, B born in 2009 who is currently five years of age and C born in 2011 who is currently three years of age (“the children”), to be returned to New Zealand.

2. The requesting applicant under the Convention is the children’s father, Mr F (“the father”) who is 21 years of age, having been born 1993.  He is a Samoan national residing in City G, New Zealand. 

3. The respondent to the application is Ms Shiree (“the mother”) who is 22 years of age, having been born in 1992, who is a New Zealand national of Maori heritage currently residing with the children in Queensland. 

4. Pursuant to the Form 2 Application and the material filed in support of it, it can be concluded that the father has rights of custody in respect of the children pursuant to the provisions of the Care of Children Act 2004 (NZ) and that fact was not put in issue by the respondent. 

5. By her Form 2A Answer and Cross-Application filed on 4 September 2014, the mother sought the dismissal of the Application on two bases.  First, it was the mother’s contention that the father consented to the children’s removal from New Zealand to Australia on 9 January 2014.  Alternatively, it was contended that the father had subsequently acquiesced in the retention of the children by her in Australia.  The father maintains in his affidavit evidence, and indeed in his oral evidence when cross-examined before me on the Application, that he did not consent to any more than the children coming to Australia for a holiday. 

6. Part of his case is that at the time of the removal of the children from New Zealand, he was sharing in the care of the children with the mother.  Indeed, on the father’s evidence he was reluctant for a time about the children even travelling to Australia but ultimately consented only to them coming here for a holiday.  So far as the issue of consent is concerned, I accept the applicant’s case that the father did not consent to the children travelling to Australia and remaining here on any permanent basis. 

7. There are essentially three pieces of evidence relied upon for that conclusion.  Firstly, the father’s own evidence which I accept as to reaching agreement about the children travelling here for a holiday only.  Secondly, the fact that the mother completed immigration documents confirming her intention to remain in Australia only for a three week period when she arrived here on 9 January 2014.  And finally, there is evidence in the mother’s own case indicating her intention to be in Australia on a temporary basis.  The fact that the mother’s affidavit itself makes reference to “holiday”, as does other evidence she has filed in support of her case, makes it clear that at least prior to and at 9 January 2014 it was her intention for it to be a holiday or that at least she led the father to believe that there would only be a holiday period involved. 

8. I should record that, other than the issues of consent and acquiescence, there cannot be any doubt that the other requirements of the Regulations have been fulfilled by the applicant. That includes the fact that an Application has been made under subregulation 41 for an order for the children being wrongfully retained in Australia. The subject children are under the age of 16 years and the Application is made within one year of the children’s removal on 9 January 2014 and within one year of the holiday period referred to. As to that, I am satisfied both by the mother’s statement to the immigration authorities when she arrived in Australia and on the father’s oral evidence that the expectation was that the holiday period would be for about a month.

9. I also record that New Zealand is a Convention country within the meaning of the Regulations.

10. It was not in issue on this Application that prior to 9 January 2014 the children were habitually resident in New Zealand.  As already noted, I am satisfied by operation of the New Zealand legislation, that is, the Care of Children Act 2004 (NZ), that the father had rights of custody in relation to the children under the law of New Zealand immediately before the children’s retention in Australia, and I am satisfied on the father’s evidence and indeed on the mother’s acknowledgement that he undertook some care of the children, that he would have exercised these rights, but for the retention.

11. Whilst there is a factual dispute on the material as to the extent of the father’s care of the children prior to them coming to Australia on 9 January 2014, and it may be concluded that the mother was the primary carer, it is the fact that the father was participating in those care arrangements to some extent and I am satisfied that he would have continued to exercise those rights. 

12. In terms of the background of this Application, the parents commenced their relationship in around 2008 and separated on a final basis in September 2013.  They did not marry.  I have noted that there are two children of the relationship and I have noted their dates of birth.  Both of the children were born in New Zealand and the parents were living in New Zealand throughout the relevant time. 

13. A significant part of the evidence in the case is the exchange of email or text messages between the parents over the period following the mother’s travel to Australia on 9 January 2014 with the children.  It is clear that a significant dispute arose between the parents concerning the father’s relationship with his current partner.  It is unnecessary to this Application to determine whether, on the mother’s case, that relationship had commenced before the final separation of the parties or whether it had commenced, on the father’s case, after the breakdown of their relationship, but it is undoubtedly clear from the evidence as a whole that the mother had a significant reaction to the feature that the father had taken up a new relationship. 

14. So far as the issue of consent is concerned, I record that I accept the father’s evidence in paragraphs 6 and 7 of his first affidavit attached to the Form 2 Application.  There, the father deposes to what he was told by the mother in terms of the travel and it is clear on his evidence that he clearly communicated to the mother, both face to face and through text messages, that he was not consenting for his daughters to leave New Zealand, but ultimately consented to the children leaving for a holiday. 

15. The exchange of text messages thereafter comprise, in summary, the mother voicing her complaints about the father in terms of his capacity as a father, mostly, it seems, by reference to the fact that he had taken up a new relationship and for his part the father’s insistence that he had not consented to the children remaining in Australia.

16. There were repeated efforts by the father to obtain the mother’s address in Australia and repeated efforts by him to secure the mother’s voluntary return with the children to New Zealand.  That led, without detailing all of the messages, to exchanges, at least by late January early February 2014, with assertions concerning court action.

17. Certainly by 3 February 2014 the father was asserting to the mother statements to the effect such as “I will see you in court” and “Obviously we will never see eye to eye, [the mother’s given name], so the best way to sort this out is in court”.  There are like assertions by the mother to the effect that if the father took her to court, “I will be going for full custody”.  There are assertions by the mother to the effect that she had received advice that she would have no difficulty so far as court action goes which drew the response from the father, also on 3 February 2014:  “Okay see you in court”.  I refer to these exchanges for the proposition that it would seem the father was clearly aware of the capacity to obtain legal advice or to approach a court, whether or not he actually knew of the existence of the Hague Convention. 

18. The father’s affidavit material does not make it entirely clear by any means that he knew nothing of the Hague Convention or his capacity to seek relief in terms of seeking orders from a court for the mother and children to be returned from Australia.

19. The messages culminated in those exchanged on 7 February 2014.  Up until that point, the father had been asking for the mother’s address and it is clear that in the message he forwarded at 11.28 am on 7 February 2014 the father had received the address from the mother because he expresses thanks for that.  He says: 

    … I’ve been thinking all night about our girls and what’s best for them. I know now that they won’t move back and that I won’t move over. I’ve accepted that fact that I won’t be able to have my babies back with me under my care. It’s hurting me but I’ve done this to myself and it’s my fault. I’ve accepted that fact [the mother’s given name]. But please accept the fact that I will honestly try to be the best father I can be from here in NZ. I’m gonna [sic] change my sim to 2degree soo [sic] I can ring them everyday. I’ll also be saving up to come visit them as much as I can and I’m hoping that you will allow me to take them with me for a couple of days just soo [sic] we can have that father daughter bonding time. I know it’s not the best news but it’s honestly better than nothing and we won’t no [sic] the outcome until we try. Thanks for the address. I’ll do a parcel and send it over as soon as I can.

20. That is followed by a message at 11.31 am from the father to the mother saying:

    Soo yea [sic] I’m going to let them stay there [the mother’s given name]. I’ll drop that court bullshit. Please promise me that I will be able to ring them, no [sic] what their [sic] doing, send them stuff and see them. It’s hurting me that it’s come down to this but please don’t get mad or frustrated. I’m letting you have what you want so if you could do the same back then we know we’re doing something right together.

21. There is also a message at 11.48 am where the father expresses that:

    …I want you to start fresh and me moving over will not allow you to do that.  Thank you for being the stronger one out of us two.  Thanks for still being you and not allowing what other’s [sic] say come in the way of me getting contact with our girls.  Thank you for being the strong woman you are for our babies.  I don’t want to argue with you anymore [the mother’s given name].  You can dog me or whatever.  I’ll take it and accept because it is my fault.….

22. He repeats in a message at 11.55 am:

    Their [sic] in Aus with there [sic] mum to start fresh.  I’ve accepted that you want to start fresh and allowing that

23. There are like messages, albeit also on the same day, but also continuing complaints by – or criticisms coming from the mother in the exchanges thereafter.  It is submitted on behalf of the father and, indeed, it was his evidence that the explanation for those messages was that he was promising the mother whatever she wished to hear in order to maintain a relationship with his daughters or at least to maintain contact with them.

24. However, on a reading of all the messages as a whole, which I do not recount in detail here, I am not satisfied that that is so and, indeed, I am satisfied that the mother positively demonstrates acquiescence on the part of the father in the messages sent, particularly on 7 February 2014. 

25. There is no evidence before me after those messages of the father retracting his acquiescence in terms of not seeking an immediate return of the children or an order by a Court to that effect.  There certainly is continuing debate between the parents, in many respects similar to what had occurred before, but there is no evidence before me of any exchanges much beyond 7 February 2014 until there is a further message two months later, or more than two months later on 13 April 2014.  Even then, as at 15 April 2014, the father said this:

    Why do you keep saying they’re saying fine without me yet your [sic] complaining that you’re doing this alone?  Stop the blaming if you want help then ask?  If you don’t then stop complaining.  You have the girls.  I don’t.  You see them every day.  I don’t.  You don’t have someone controlling how much you talk to them.  Again I left you.  You left the country.  You ran away.  And by the way you would of [sic] gone even I begged you to stay… you know how stubborn you are.

26. Again, whilst that is criticism of the mother, it is not an assertion by the father that he will seek an order from a court or intends to invoke his rights to seek orders under the Hague Convention or via any other court process.

27. In my judgment, when one reviews all of the text messages, it is made plain by the message sent by the father on 15 April 2014 that it was only then he finally reached his end point in terms of frustration about the mother obstructing him from calling or contacting the children.  He there refers to requiring the mother’s permission to so do.  That leads to the message he sent on 19 April 2014 where he refers to the mother threatening to stop all contact, then:

    …you leave me no choice.  all [sic] you had to do was just let me have contact but you couldn’t even do that.

28. In my judgment that makes it plain that if the mother had facilitated time and communication, as had been sought by the father, then he would not have sought to disturb the position of the mother and the children.

29. It seems to me that the reference in his email of 19 April 2014 can only be read and understood as meaning that he was then left with no choice but to seek formal Court action.  It is the case that the current proceedings were not filed until the 17 July 2014 and there was no explanation that I found satisfactory as to explain the father’s lack of activity between 7 February 2014 and the messages there referred to and the bringing of the current Application. 

30. In the relevantly recent decision of Department of Community Services, Community Services & Raelson [2014] FamCA 131, I undertook a review of the authorities concerning acquiescence and sought to summarise the principles. At paragraph 100 of that judgment, I noted as follows:

    … The following propositions are distilled from Re H (Abduction: Acquiescence) [1998] 2 AC 72; Director-General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785 per Lindenmayer J; Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106 (EWCA); Kilah v Director-General, Department of Community Services (2008) FLC 93-373 (Bryant CJ, Coleman and Thackray JJ); Police Commissioner of South Australia v Temple (1993) FLC 92-365; Laing v Central Authority (1996) 24 Fam LR 555.

    a)The onus of establishing acquiescence rests upon the respondent. Acquiescence must be proven by clear and cogent evidence.

    b)The right to which acquiescence is directed is the right of the applicant parent to the immediate return of the children. It is not acquiescence in the child or children remaining permanently in the forum that needs to be established.

    c)Acquiescence operates to effectively estopp the applicant parent from demanding the immediate return of the child or is to be seen as waiver by the applicant parent of the right to immediate return.

    d)The applicant parent must be shown to have the subjective intention not to insist upon a right to summary return. If that subjective intention is not established it is only if the words or actions of the applicant parent clearly and unequivocally show, and have lead the respondent parent to believe, that the applicant parent is not asserting or going to assert a right to summary return, and are inconsistent with such return, that acquiescence is established.

    e)Words or conduct of the applicant parent (including passive inaction over time where action ought be expected) have the potential to inform the enquiry as to acquiescence in two ways. First, and most commonly, the court infers from the words or conduct (or both) that the applicant parent had the requisite subjection intention despite later claims by the applicant parent as to his or her intentions being otherwise. In so doing the court is determining as a fact that the applicant parent had the requisite subjective intention. Second, and perhaps less commonly, the words or conduct (or both) of the applicant parent may be sufficiently clear and unequivocal as to demonstrate that the other parent was lead to believe that the applicant parent was not going to insist upon summary return. Later claims that the applicant parent always secretly intended to seek summary return, even if true, will not displace acquiescence in those circumstances.

    f)In both categories of case the context or contextual matters surrounding the words or the conduct may be important considerations in determining that clear and unequivocal acquiescence is established.

    g)Acquiescence, once established is irrevocable. To conclude otherwise would render the acquiescence exception illusory because it will only arise when the applicant parent, who has previously acquiesced, has changed his or her mind and seeks immediate return. Prompt attempts to displace or withdraw acquiescence might be relevant to the court’s exercise of discretion, as might be the reasons for those attempts and indeed the consequences of acquiescence, but acquiescence once established cannot be revoked. 

31. The authorities make it clear that each of these cases turn on their own facts.  It is clear that in considering acquiescence cases such as Department of Health and Community Services, State Central Authority v Casse (1995) FLC 92-629 (“Casse”) referred to make it important to consider the context in which relevant words or conduct occurred.  In Casse, for example, Kay J determined there to be such a state of confusion and emotional turmoil that the husband there did not have the subjective intention nor could it be inferred because it could not be concluded that the words and conduct were clear and unequivocal, viewed in that context.

1. In this case, I am satisfied that the mother discharges the onus she bears to establish acquiescence in the relevant sense.  Having heard the father give evidence and in the context of the emails written by him, including many strongly asserting his rights, I am not satisfied that the emails referred to of 7 February 2014 and following that I have made reference to, demonstrate that his conduct is simply the product of confusion or emotional turmoil or based simply on an intention to seek to have the mother cooperate with him.

2. Conversely, I am satisfied that the emails referred to are clear and unequivocal in their language.  In my judgment, they clearly demonstrate that the father acquiesced so far as his right to seek any immediate return of the children.  I am satisfied that it is acquiescence in the form of the father being estopped from demanding the immediate return of the children or as a waiver of his rights to do so.

3. I am therefore satisfied that on the evidence referred to, the father’s subjective intention is established, that is, an intention not to seek a summary order for return. 

4. The establishment of acquiescence gives rise to the discretion, that is, whether an order for return of the children should still be made notwithstanding that the mother has established acquiescence as a discretionary consideration.

5. In support of the contention that the discretion ought be exercised in favour of an order for return being made nevertheless, the applicant emphasises that the father did not originally give his consent, and I have found that to be so, to the children remaining in Australia.  Reference has also been made to the fact that the children have lived all their lives to date in New Zealand and the mother’s own mother continues to live in New Zealand. 

6. It is submitted that the New Zealand legal system can adequately address any “delinquency” as it was put on the part of the father and I accept that to be so.  I also accept that the father, whatever the actual level of parenting, had a significant role so far as parenting of these children prior to them coming to Australia on 9 January this year.

7. As against that, it is the fact that the children have been living in Australia since 9 January 2014 and I am satisfied on the mother’s evidence that she has an extensive support network in Australia including, it seems, a number of relatives or friends including those supporting her in Court today. 

8. I also note the father’s delay so far as this Application not being filed until July of this year. I also consider it significant to the exercise of discretion in this case that we are speaking of Australia and New Zealand as the two Convention countries involved. Applications under the Regulations, it is trite, are matters about forum, not about parenting per se. The essential question is whether the parenting proceedings should be heard and determined in Australia or heard and determined, in this case, in New Zealand.

9. I am satisfied that in the circumstances the matter can be suitably litigated in an Australian court particularly in circumstances where the children and mother have now been here for many months. 

10. For these reasons, I am not persuaded that I ought exercise the discretion in favour of making return orders.  I therefore refuse the Application for final orders.  As and by way of mechanics, unless there are submissions to the contrary, I should discharge the orders previously made on an interim basis in this matter.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 22 September 2014.

Associate: 

Date: 22 September 2014