Director-General, Department of Communities, Child Safety and Disability Services and Small-Parsons (No. 2)
[2014] FamCA 281
•2 May 2014
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & SMALL-PARSONS (NO. 2) | [2014] FamCA 281 | |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application under the Hague Convention for the return of the children to New Zealand – Whether habitual residence in New Zealand established – Whether requesting parent consented to the children remaining in Australia – Whether return of children to New Zealand ought be delayed | ||
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) Family Law Act 1975 (Cth) | |
| De L v Director-General, New South Wales Department of Community Services and Anor (1996) 187 CLR 640 | |
| APPLICANT: | Director-General, Department of Communities, Child Safety and Disability Services |
| RESPONDENT: | Ms Small-Parsons |
| FILE NUMBER: | BRC | 2049 | of | 2014 |
| DATE DELIVERED: | 2 May 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 30 April 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Linklater-Steele |
| SOLICITOR FOR THE APPLICANT: | Crown Law |
| COUNSEL FOR THE RESPONDENT: | Mr Selfridge |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Queensland |
Orders
IT IS ORDERED
That the children, D born … 2008, and N born … be returned to New Zealand; and for the purposes of giving effect to this order:
(a)that the said children leave the Commonwealth of Australia on or before 16 May 2014;
(b)that the said children arrive in New Zealand on or before 17 May 2014;
(c)that 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)that subject to sub-paragraph (e) 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 Small-Parsons born … 1989, and the said children on the Family Law Watchlist at all international departure points in Australia;
(e)that the said children and the Respondent Mother 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;
(f)that 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;
(g)that to facilitate the return of the said children to New Zealand, Ms E, Department of Communities, Child Safety and Disability Services or her nominee be at liberty to release all current passports relating to the children for the purpose of the said children’s return to New Zealand; and release of the Respondent Mother’s passport to her or her nominee upon request;
(h)that liberty to apply be granted to the Applicant to seek any further orders necessary to allow him or officers of the Department of Communities, Child Safety and Disability Services to make such arrangements as are necessary to facilitate and ensure the return of the 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.
That the Respondent Mother Ms Small-Parsons pay all the necessary expenses associated with returning the children to New Zealand, including the cost of airfares and departure taxes (if any) for the children to travel from Brisbane International Airport to New Zealand.
That any other applications be dismissed.
That there be liberty to apply.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Small-Parsons (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 2049 of 2014
| Director-General, Department of Communities, Child Safety and Disability Services |
Applicant
And
| Ms Small-Parsons |
Respondent
REASONS FOR JUDGMENT
By Application in Form 2 filed on 5 March 2014 the Director-General, Department of Communities, Child Safety and Disability Services, in the capacity of State Central Authority (“the Central Authority”) pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”), applies for final orders for the children, D born in 2008, who is currently six years of age and N born in 2011, who is currently two years of age, to be returned to New Zealand, a convention country within the meaning of the Regulations.
The requesting applicant under the Regulations is the children’s father, Mr W (aged 24, born in 1989) (“the Father”). The Respondent is the children’s mother, Ms Small-Parsons (aged 24, born in 1989) (“the Mother”) who is currently residing with the children in Australia.
On 16 April 2014 the Mother filed her Form 2A answer and cross-application. In response to the application the Mother contended, in summary: that on or about 14 October 2012 the children’s habitual place of residence changed from New Zealand to Australia; at all relevant times since 14 October 2012, the children’s habitual place of residence has continued to be in Australia (particularly, when the Father returned to New Zealand sometime between about December 2012 and May 2013); including when the children travelled to New Zealand in or about January 2013 and thereafter; and when the Father delivered the children to Australia on or about 9 January 2014.
The Mother also advanced alternative positions, first, that the children’s place of residence became Australia when they arrived on or about 9 January 2014; second, that the Court should exercise its discretion and refuse to make a return order on the grounds that the Father consented or acquiesced respectively to the children’s removal to or retention in Australia on or about 9 January 2014; and finally that returning the children would expose the children to psychological harm or otherwise place them in an intolerable situation.
There is no issue taken, and the evidence clearly establishes that:
a)An application has been made to this Court under subregulation 14(1) for an order for the children allegedly retained in Australia (reg 16(1)(a));
b)Each of the children is under 16 years of age (reg 16(1A)(a));
c)The application is made within one year of the children’s alleged retention on 28 January 2014 (reg 16(1)(b)); and
d)New Zealand is a Convention Country (reg 16(1A)(b)).
At the trial of the application the Mother’s counsel confirmed that the Mother no longer pursued the contention that the Father had “acquiesced” within the meaning of reg 16(3) and moreover it was confirmed that the Mother no longer pursued any contention to the effect that returning the children would expose them to psychological harm or otherwise place them in an intolerable situation, the “grave risk” exception so-called within the meaning of reg 16(3).
Thus counsel for the Mother confirmed that the sole issue agitated by her as the basis for resisting the orders sought by the Applicant was the issue of habitual residence and her contention that the Father had consented to the children living permanently in Australia.
As set out in her cross-application the Mother sought orders, inter alia, that the application of the Central Authority be dismissed; that interim orders of 18 March 2014 be discharged; in the alternative, should the court make a return order, that the Central Authority and the Father make arrangements for the children’s return to New Zealand in the company of the Mother; within 21 days the Father book and pay for the Mother and the children’s airline tickets to New Zealand and deposit AUD5,000 in the Mother’s bank account for the Mother to use to support herself and the children upon their return to New Zealand. The Mother also sought an order that in the event that the Father failed to provide the return air tickets or fails to provide the sum required to support the Mother and children by the due date, then the return order shall lapse and the application for return of the children shall be discharged.
As at the trial the Mother altered her position so far as the orders to be made in the event that the Court determined that a return order ought be made. Furnished with the proposed orders sought by the Central Authority which, inter alia, provided for the children to leave the Commonwealth of Australia on or before 16 May 2014 and for the Mother to pay all the necessary expenses associated with that return; the only issue agitated by the Mother was in respect of the date of return. The Mother contended that because the older child is currently in school in Brisbane he ought be allowed to complete the current term finishing in July. Moreover the Mother contended that she would suffer some adverse financial consequences of breaking her current lease of premises prior to August this year. On that basis the Mother sought that if the Court determined a return order should be made, that return ought be delayed to take into account these factors.
Thus the issues for determination on this application are as follows:
1)Were the children habitually resident in New Zealand immediately before 28 January 2014, the alleged date of wrongful retention (reg 16(1A)(b))?
2)Did the Father consent to the children being removed to, or retained in, Australia (reg 16(3)(a)(ii))?
3)If consent is established, should a return order nevertheless be made (reg 16(5))?
4)If a return order is made should the children’s date of return be delayed?
Relevant history – Factual issues
The Mother and the Father met while in high school in New Zealand and commenced their relationship in 2006, began cohabitating in 2007 and separated in early 2013. They did not marry. D born in 2008 and N born in 2011 are the only children of the relationship. Both children were born in New Zealand.
During the relationship the parties resided in New Zealand, cohabitating in rental accommodation and also periodically with relatives. In early 2012 the parties agreed to move to Australia for a “fresh start” and to enable the Father to find employment. In May 2012 the Father travelled to Australia and resided with friends at Town F, northern Qld. The Mother and the children travelled to Australia in October 2012 where they resided with her brother in Brisbane.
The Mother deposes that once she and the children “left New Zealand in October 2012, it was never my intention for myself or the children to live permanently in New Zealand again.”[1] In his affidavit responding to the Mother’s affidavit, the Father denies this and claims “we never made the decision to go to Australia for good. It was a rough plan, see how it goes, lets [sic] give it a try. There is no way that we would have sat down and made a decision that it was permanent or for good.”[2] In his earlier affidavit filed in support of the application the Father deposes “In 2012, [the Mother] and I agreed that we needed to make a new start and would move to Australia with the children”.[3]
[1] Mother’s affidavit filed 16 April 2014 paragraph 36.
[2] Father’s affidavit filed 16 April 2014 paragraph 26.
[3] Father’s affidavit filed 5 March 2014 paragraph 12.
When the Mother and children came to Australia on or about 14 October 2012, the Father reportedly stayed with the Mother and children for a few weeks before moving in with his cousin at Suburb G on the Gold Coast as the Mother and Father “weren’t clicking”. During December 2012 the Mother and Father shared care of the children between the two houses. The parties agree that between Christmas night 2012 and early May 2013 the Father absented himself from the lives of the children and disappeared and had no contact with the Mother or his family.[4]
[4] Mother’s affidavit filed 16 April 2014 paragraphs 44-50; Father’s affidavit filed 16 April 2014 paragraph 33.
In January 2013 the Mother and the paternal grandparents, who at all material times have lived in New Zealand, agreed that the children should come into the care of their paternal grandparents in New Zealand while the Mother “sorted herself out”. On the Mother’s case, this meant that the children would temporarily stay with the paternal grandparents in New Zealand while the Mother obtained employment and suitable accommodation in Australia at which point the children would return to her care. The Mother travelled with the children to New Zealand in January 2013 to deliver the children into the care of the paternal grandparents and she returned to Australia. Between mid January 2013 and May 2013 the children were cared for by the paternal grandparents in New Zealand and thereafter with the assistance of the Father. While the children resided with the paternal grandparents D was in early 2013 enrolled in and thereafter commenced school at H School in Town J, New Zealand and N started at K preschool in Town J.
In May 2013 the Mother visited the children in New Zealand for N’s second birthday. There is an issue as to whether the children were in the Mother’s care for five days or whether she visited them each day outside of school/pre-school hours before she returned to Australia. During that week the paternal grandparents told the Mother they wanted help to look after the children. At the time the Mother was residing in Perth with her family and was working. She contends that she offered to take the children back with her however as she was residing with family there was very little room for the children. Around the same time the paternal grandparents contacted the Father and requested that he return to New Zealand to care for the children. The Mother was subsequently informed later in her visit that the Father was returning to New Zealand to help care for the children.[5] The Father returned to New Zealand after the Mother left in May 2013 and has resided with the paternal grandparents since.
[5] Mother’s affidavit filed 16 April 2014 paragraphs 62-66.
On the Mother’s case during her May 2013 visit “there wasn’t any talk about when I was going to take the children back. Because [the Father] was coming back, [the Father’s] parents implied that I could take my time.”[6] The Father responds to this statement in his affidavit in reply and deposes “In May 2013 when [the Mother] was in New Zealand, she knew that I was coming back to look after the children. She had not come to take them back to Australia. At that point, she knew, accepted and agreed that they were to remain in New Zealand.”[7]
[6] Mother’s affidavit filed 16 April 2014 paragraph 68.
[7] Father’s affidavit filed 16 April 2014 paragraph 42.
On the Mother’s case, the children’s care arrangement living with the paternal grandparents in New Zealand was meant to be temporary and then the children were going to return to Australia. [8]
I always understood from these discussions that the arrangement was only temporary. When I spoke with [the Father’s] dad and [the Father’s] mum they both said to me it would be until I could ‘sort myself out’ and I would say it’s just until I can ‘get established’. I understood both these things to mean a job, a steady income, to save enough money to get the children into child care, and to have a stable home. No set period of time was discussed.
[8] Mother’s affidavit filed 16 April 2014 paragraphs 51-56.
The Father agrees that as at January 2013 it was anticipated that the children were only going back to New Zealand to live with his parents for a short period while the Mother “got herself sorted”, however “That never happened. For that reason, I was required to return to New Zealand to care for the children. The children remained in New Zealand.”[9] In his affidavit in reply (filed 16 April 2014) the Father responds to the Mother’s contentions that the arrangement was only temporary and deposes: [10]
I knew that they [the children] were not supposed to stay in New Zealand for long. There was no discussion with me about how long it was supposed to be. When mum rang me to come home, it was clear they were back in New Zealand for good.
[9] Father’s affidavit filed 16 April 2014 paragraph 35.
[10] Father’s affidavit filed 16 April 2014 paragraph 36.
The reference there about the maternal grandmother asking the Father “to come home” refers to the request made in May 2013.
In August 2013 the Mother arranged a place to live in Perth and a live in nanny to care for the children. On the Mother’s case she contacted the Father about the children living with her, however the Father allegedly stated that he would rather care for the children himself and he wanted D to finish the school year in New Zealand. The Mother maintains the parties then agreed that D “would finish the school year and then the children were going to come back to live with me in Brisbane”.[11] The Father denies this and claims “There was no discussion or agreement that the children would come across at the end of the year to live with her.”[12]
[11] Mother’s affidavit filed 16 April 2014 paragraph 71.
[12] Father’s affidavit filed 16 April 2014 paragraph 45.
In October 2013 the Mother again visited New Zealand and the children and also attended her relative’s wedding and again returned to Australia with the children remaining in New Zealand.
Resolution of disputed issues of fact
As will be apparent from the foregoing there are many issues of disputed fact on the affidavits of the parents. That dispute extends to their respective witnesses. The Mother relied upon an affidavit of her father Mr Small-Parsons filed 23 April 2014 and the Central Authority relied upon affidavits of the paternal grandmother, MS W.
At the outset of the trial, given the extent of disputed issues of fact on the affidavit evidence, and mindful of what the Full Court of this Court observed in Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472 as to cross-examination to resolve factual disputes, I invited each of counsel for the Central Authority and counsel for the Mother to undertake cross-examination to resolve factual issues.
Despite the Court inviting cross-examination neither the Central Authority nor the Mother, via their respective counsel, sought to cross-examine and each contended in effect that such cross-examination was unnecessary to the determination of the application.
In Zotkiewicz & Commissioner of Police (No 2) the Full Court addressed the question of how factual disputes in applications of this type are to be resolved. Noting that, historically, applications under the Convention were dealt with on affidavit evidence alone and referring to policy reasons for this as identified in previous Full Court authority, the Full Court then noted (at [88]-[89]):
However, 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’. The potential consequences of a return order are serious for both the child and the parent who removed the child (commonly the primary carer). 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.
The potential importance of cross-examination in ensuring a principled adjudication of Convention matters was most recently reiterated by the High Court in LK (at 590 [15]), where it was said 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’.
The Full Court also considered the decision of the High Court in De L v Director-General, New South Wales Department of Community Services and Anor (1996) 187 CLR 640 and the more recent decision of the Full Court in this Court of Harris & Harris (2010) FLC 93-454 and at [94] the Full Court noted:
In many cases, the court will be able to deal with the matter adequately on the basis of affidavit evidence – looking for the common ground, noting the areas of conflict and weighing the probabilities. However, there are a range of cases where such an approach will be inadequate. In those cases, failure to test controversial evidence in the time honoured way, or otherwise taking steps to resolve evidentiary conflict, will lead to a flawed outcome. The result on appeal in such cases, unless a re-hearing is directed, will usually be the dismissal of the case of the party who carried the burden of proof.
The Full Court approved (at [95]) the following remarks of Butler-Sloss LJ in Re AF (A Minor) (Child Abduction) [1992] 1 FLR 458 at pp 553-554:
If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there is no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.
It is clear that the onus lies on the Central Authority to satisfy the Court of each of the elements of “wrongful” retention, as is clear from the words of reg 16(1)(c). Thus, unless the Central Authority discharges its onus of proof to meet the requirements of each of the five paragraphs of reg 16(1A) the application fails.
It is equally clear that the onus lies on the Mother to satisfy the Court of the establishment of any ground of refusal under reg 16(3), in this case the issue of consent.
Having raised the issue of onus of proof with counsel for the respective parties at the outset of the hearing both nevertheless contended that the Court ought to proceed to hear and determine the application “on the papers” without any cross-examination of any deponent.
Were the children habitually resident in New Zealand immediately before the date of alleged wrongful retention i.e. 28 January 2014?
In LK v Director-General, Department of Community Services (2009) 237 CLR 582 the High Court extensively examined and considered the meaning of “habitual residence” in the context of the Regulations.
The High Court highlighted the significance of the conclusion that habitual residence is a question of fact, referring to the way the concept had replaced the more technical concept of domicile, and saying that this change, “…entails discarding the approach of the English law of domicile which gave questions of intention a decisive importance in determining whether a new domicile of choice had been acquired.” (at [24]) The High Court also pointed out that even though it is a question of fact, “Some criteria must be engaged at some point in an enquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides, and whether residence at that place can be described as habitual.” (at [22])
As to the criteria to be engaged in considering the habitual residence of a child or children, the High Court adopted at [44] the following statement from the New Zealand decision, Punter v Secretary for Justice [2007] 1 NZLR 40, that the inquiry into habitual residence is “ a broad factual enquiry…” and that:
Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration… settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at [22], ‘The underlying reality of the connection between the child and the particular state’.
The High Court went on to state:
As the plurality righty said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality’s references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with sufficient degree of continuity to be properly described as settled. …
Notably, LK involved a case where a mother came to Australia with the children, the husband consenting, intending to live with the children in Australia unless she became reconciled with her husband (in Israel), and after coming to Australia the mother took steps during a period of two months here to enrol the children in school here and make other, fixed, arrangements. The High Court held that at the end of the two month period, the children were no longer habitually resident in Israel (the High Court specifically found that the Court did not need to decide whether the children had acquired habitual residence in Australia). Having observed at [28] that whilst intention will usually be relevant to a consideration of where that person habitually resides, nevertheless intention is not to be given controlling weight. The High Court made the following further observations as to intention in LK:
29. First, individuals do not always act with a clearly formed and singular view of what is intended (or hoped) that the future will hold. Their intentions may be ambiguous.
…
32. …because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.
33. Secondly, because a person’s intentions may be ambiguous, in asking whether a person has abandoned residence in a place, it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place.
34. Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a Court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
Having approved of the statement above from the New Zealand decision of Punter v Secretary for Justice (at [44]) as outlined above, the High Court emphasised (at [45]) the need to focus attention upon whether presence at a place has “a degree of settled purpose from the child’s perspective” (citing Feder 63 F 3d 217 at 224 (3rd Cir 1995); Karkkainen 445 F 3d 280 at 292 (3rd Cir 2006); Robert v Tesson 507 F 3d 981 at 992-993 (6th Cir 2007).
Earlier in the judgment at [27] the High Court observed:
When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing.
…
Counsel for the Mother sought to draw parallels between this case and the decision of Murphy J in Department of Communities (Child Safety Services) & Fraser [2010] FamCA 340 (4 May 2010). For reasons which will shortly be discussed, in my judgment, the factual background to that case is far removed from the facts here. In Fraser’s case an established pattern of the children spending alternating block periods of time with each parent in Australia and New Zealand respectively was fundamental to his Honour’s conclusion. In any event, as the High Court made plain at [35] of LK each case must turn on its own facts. The High Court there observed:
…to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of pre-determined weighting between them.
In LK the High Court observed at [25] by reference to the authors there cited, “Yet it may be accepted that, ‘habitual residence, consistent with the purpose of its use, identifies the center of a person’s personal and family life as disclosed by the facts of the individual’s activities.’”
In my judgment the Mother’s case concerning habitual residence rests, in reality, upon the contention that her intention is to be given controlling weight, precisely what the High Court rejected in LK.
The Mother’s case is that the children acquired habitual residence in Australia in October 2012 when she and the children arrived here to live, the Father having earlier come to Australia as outlined above.
The Mother says that it was her intention then that she and the children would live thereafter permanently in Australia. That may be accepted as to the Mother’s intention. However, the question for determination is not whether the children acquired habitual residence in Australia in October 2012 but whether they were habitually resident in New Zealand immediately before the alleged date of wrongful retention. Moreover, it is not a precondition to a conclusion as to habitual residence that there be an intention to “permanently” reside at a place, as is made clear by LK.
In January 2013 the Mother, in exercise of her parental rights, placed the children in the care of the paternal grandparents living in New Zealand. There does not seem to be much dispute, if any, that that was initially intended to be a temporary state of affairs. That is, it can readily be concluded that as at January 2013 it was intended that the children reside in New Zealand for a relatively short time. But that did not happen.
When returned to New Zealand in January 2013 the children were returning to the country of their birth and the country where they had lived for all bar the three or four months they had been in Australia. They were placed in the care of the paternal grandparents with the “assent” of the Mother within the meaning of [34] of LK. They were familiar with life with the paternal grandparents in the sense that the Mother and the children resided with the paternal grandparents for a period prior to them embarking to Australia in October 2012. The Mother suggests this was a short period only whilst other evidence suggests it was longer. The difference matters little. The fact is that the children were returning to a familiar environment and their country of origin where they had lived for all but the period between 14 October 2013 and their return in January 2014, a period of about three months.
Plainly enough, consistent with the Mother’s evidence as to intention, it was her intention then that the children live in New Zealand with the paternal grandparents for so long as was necessary for her to establish herself. In that context the children commenced to receive, and remained in, the primary care of the paternal grandparents, particularly the paternal grandmother. The older child at the commencement of 2013, whilst living with the paternal grandparents, entered what for any young child is a major phase of life. The beginning of formal education. Likewise the younger child was enrolled in preschool. Thereafter the experience of the children was to live in that environment and that life in those circumstances was clearly at the centre of their experience, as was the care provided by the paternal grandparents.
In these circumstances it is arguable that because the return of the children to New Zealand in January 2013 was the result of the exercise of parental decision making, the actual decision of the Mother (and the Father’s acquiescence in not acting otherwise), the children’s habitual residence again became New Zealand on and from their return there. The fact that the Mother maintained an intention to have the children return to live with her in Australia at some future time matters little. Both the experience of the children was as stated and they were in New Zealand living with the paternal grandparents at the express wish and desire of the Mother, even if it was initially thought to be a temporary arrangement.
However, it is unnecessary to determine whether or not the children could be said to have become habitually resident in New Zealand immediately upon their return there in January 2013. The issue for determination is whether they were habitually resident in New Zealand immediately before 28 January 2014, the alleged date of wrongful retention.
Both these children are very young. In terms of experience and perception it is obvious that with young children not a great deal of time needs to pass to inform their experience. The fact is that from the children’s experience and perspective given their respective ages, a very significant amount of time elapsed given that they remained in New Zealand on and from January 2013 with a couple of short visits only from their Mother in May and October 2013 and in the meantime, as from May 2013, they had the experience also of care from the Father.
It bears repeating that the children recommenced living in New Zealand and in the primary care of the paternal grandparents as at January 2013 at the express wish and desire of the Mother. Her settled purpose or intention at that time, so far as concerns the children, was that such care and living arrangements should pertain. Even in May 2013 when the paternal grandparents sought assistance the net result was that the Father returned from Australia to New Zealand to live with the children and his parents to provide such assistance.
At all material times those persons to whom the children looked for their care during 2013 (and other than the approximate three month period from 14 October 2012) were living in New Zealand. The paternal grandparents, as already noted, have always lived in New Zealand and the Father returned to live in New Zealand as from May 2013, at the request of his parents and to the Mother’s knowledge.
It can thus be seen that whatever the intentions of the Mother, and even assuming that throughout she maintained an intention or plan that at some point the children would return to live with her in Australia, the fact is that simply did not occur.
On and from January 2013 the centre of the children’s lives was life in New Zealand and care being provided by persons habitually resident in New Zealand, save only for two short visits from their Mother throughout 2013.
For these reasons I am satisfied that the children were habitually resident in New Zealand as at the alleged date of wrongful retention.
Consent
I have already referred to the fact that the onus of proof rests with the Mother on establishing consent within the meaning of reg 16(3). That is, that the Father consented to the children remaining permanently in Australia when they travelled here with the Father on 9 January 2014.
In terms of the Mother discharging her onus I have earlier referred to authority for the conclusion that where there is disputed non-oral evidence the court must look to see if there is independent extraneous evidence in support of one side. Moreover, that evidence has to be compelling before the court is entitled to reject the sworn testimony of a deponent or alternatively the evidence on affidavit must be inherently improbable and therefore so unreliable that the court is entitled to reject it.
Thus in circumstances where the Mother declined to challenge the Father and his mother on their affidavit evidence, which it may be observed is completely contrary to the Mother’s affidavit and that of her own father relevant to the issue of consent, this issue is to be approached with these principles at the forefront.
In short, I find that there is no inherently improbable evidence contained within the affidavit of the Father and his mother going to this issue. That is, I am not satisfied that the evidence directed to this issue in the Central Authority’s case is so unreliable that I am entitled to reject it on that basis.
In terms of independent extraneous evidence it seems to me that, as counsel for the Central Authority pointed out, the most critical evidence is the contemporaneous communications exchanged between the parents commencing on 20 January 2014 as contained within annexure C to the Father’s affidavit filed in support of the Form 2 application on 5 March 2014.
As appears from annexure C that exchange of communication commences with the Father asking of the Mother on 20 January 2014 whether she had booked tickets for the children’s return to New Zealand. This is in the context that on the Father’s evidence the children’s trip to Australia was a holiday visit and they were to be returned so that the older child could recommence school in New Zealand with the school term commencing on 28 January 2014. When the Father received a negative response from the Mother to that message he sent a further message, the same day, to the effect that the Mother ought expedite the purchase of tickets. That drew a response from the Mother requesting money.
None of those messages in annexure C viewed as a whole or in sequence, from either party, is consistent with the Mother’s case that the Father had consented to, and understood, that when the children travelled to Australia on 9 January 2014 they were to live here permanently with the Mother. As counsel for the Central Authority highlighted, perhaps the most significant of the messages exchanged is that appearing as having been sent by the Mother to the Father at 4.58 pm on 21 January 2014. Ignoring the abbreviations in that message, it reads:
You wouldn’t have brought them over if I said I wanted them for good would you?
In my judgment that message alone, let alone the messages overall, makes it patently clear that the Mother had not, prior to 9 January 2014, told the Father of any intention that the children were to remain in Australia thereafter permanently or that she had the Father’s consent to that course. In submissions, counsel for the Mother suggested that he could not improve upon the Mother’s version in response to these messages as set out in her affidavit commencing at about paragraph 112. I accept that to be so but I find that the Mother’s explanation implausible. I find that the parental agreement was for this to be a visit on the terms deposed to by the Father.
The Mother does not discharge the onus of proof that she bears on establishing consent. No basis under reg 16(3) to resist a return order or thus to enliven the residual discretion is made out.
Conclusion and orders
Having found that the children were habitually resident in New Zealand immediately before the date of wrongful retention I am satisfied on the evidence in the Central Authority’s case, which was not put in issue on these points, that the Father had and was exercising, “rights of custody” within the meaning of the Regulations as at that date and, but for the Mother’s wrongful retention of the children, would have been exercised.
As I have found that consent is not made out, the only reg 16(3) ground ultimately pursued, a return order must be made.
As earlier observed, the Mother contends that the return of the children to New Zealand ought be delayed at least until July when the older child is due to complete his current school term in Brisbane and preferably delayed until August given the Mother’s lease commitments.
Counsel for the Central Authority informed me from the bar table, without objection, that term 2 of the New Zealand school year is due to recommence on 5 May 2014. A return order is sought for the children to arrive in New Zealand on or before 17 May 2014 and thus counsel for the Central Authority observed that whilst that would necessarily involve some loss of time for the older child the sooner he was returned and assimilated back into his school the better, in terms of his best interests.
The purpose of the Convention was authoritatively explained by the majority of the High Court in De L v Director-General, New South Wales Department of Community Services and Anor (1996) 187 CLR 640. The majority referred to the preamble and emphasised that the Convention was directed to the prompt return of children to the State of their habitual residence. The High Court also held that the requirement in the Family Law Act 1975 (Cth) (“the Act”) then expressed in s 64(1)(a) that the welfare of the children be the paramount consideration, did not apply to proceedings under the Regulations such that any discretion enlivened under reg 16(3)(c) was governed by the subject matter, scope and purpose of the Regulations. That subject matter was held to make the welfare of the child a relevant consideration, but not the paramount consideration.
In my judgment in the circumstances of this case it would be contrary to the purpose of the Convention given effect to by the Regulations to delay the return of the children to New Zealand, give that this is not a case where the discretion is enlivened. Even if it were necessary to have regard to the children’s best interests, in my judgment those interests would be best met, having regard to the older child’s need to resume schooling in New Zealand, for that return to be sooner rather than later.
For these reasons I make orders in terms of the orders sought by the Central Authority as set out at the commencement of these reasons.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 2 May 2014.
Associate:
Date: 2 May 2014
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Injunction
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Jurisdiction
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Consent
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Remedies
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Costs
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Standing
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