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

[2015] FamCA 4

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & TALLULAH [2015] FamCA 4

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the respondent mother alleges that the applicant father consented to the children permanently relocating to Australia or later acquiesced in their retention here – Where the respondent mother asserts children not habitually resident in New Zealand – Where the respondent mother alleges grave risk of harm – Where the children were habitually resident in New Zealand – None of consent, acquiescence or grave risk exceptions made out

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

BB v JB [1998] 1 ILRM 136
De L v Director-General & NSW Department of Community Services & Anor (1996) 187 CLR 640
Department of Family and Community Services & Raelson [2014] FamCA 131
Dimer v Dimer, No 99-2-03610-7 SEA (Wa Sup CT July 29, 1999)
Director-General, Department of Child Safety v Stratford (2005) FLC 93-249
Gazi v Gazi (1993) FLC 92-341
Harris & Harris (2010) FLC 93-454
Laing v Central Authority (1999) 24 Fam LR 555
LK v Director-General, Department of Community Services (2009) 237 CLR 582
MW v Director-General, Department of Community Services (2008) 82 ALJR 629
RCB v Forrest (2012) 247 CLR 304
Re C (Abduction: Consent) [1996] 1 FLR 414
Re: F (Hague Convention: Child’s Objections) (2006) FLC 93-277
Re: P (A Child) (Abduction: Acquiescence) [2004] EWCA CIV 971
Re: P-J (Children) [2009] EWCA CIV 588
Sub nom B v B (Child Abduction) [1998] 1 IR 299
Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472

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

RESPONDENT: Ms Tallulah

FILE NUMBER: BRC 9790 of 2014

DATE DELIVERED: 15 January 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 12 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGregor

SOLICITOR FOR THE APPLICANT: Crown Law

THE RESPONDENT: In person

Orders

It is ordered that:

1. The children, L born … 2007, J born … 2009 and B born … 2012, 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 30 January 2015;

   (b)       The said children arrive in New Zealand on or before 31 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 … I Street, Town A, Queensland, 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 Tallulah born … 1974, and the children, L born … 2007 (female), J born … 2009 (male) and B born … 2012 (male), on the Family Law Watchlist at all international departure points in Australia;

   (f)       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;

   (g)       The Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these Orders;

   (h)       To facilitate the return of the said children to New Zealand, Ms T, Department of Communities, Child Safety and Disability Services or her nominee be at liberty to release all current passports relating to L born … 2007, J born … 2009 and B born … 2012 for the purposes of the said children’s return to New Zealand; and release the Respondent Mother’s passport to her or her nominee upon request;

   (i)        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, L born … 2007, J born … 2009 and B born … 2012, 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).

2. 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 & Tallulah 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 9790 of 2014

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

Applicant

And

Ms Tallulah

Respondent

REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 30 October 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 return from Australia to New Zealand of the children, L born in 2007 who is currently 7 years of age; J born in 2009 who is currently 5 years of age; and B born in 2012 who is currently 2 years of age (“the children”).

2. The requesting applicant under the Convention is the children’s father, Mr Tallulah (“the father”) (aged 60, born in 1954), a New Zealand national.  The respondent to the application is Ms Tallulah (“the mother”) (aged 40, born in 1974), a Samoan national with New Zealand citizenship who is residing with the subject children at I Street, Town A.

3. The mother opposes the application on a number of bases.

4. The mother contends that the father consented to each of the children being removed to Australia prior to their respective removals; or alternatively that the father subsequently acquiesced in the children’s retention in Australia.  The mother further contends that the children were not habitually resident in New Zealand at the relevant dates or times.  The mother also advances, to some extent, evidence to contend that 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.

Relevant history of parental relationship

1. Briefly stated, the mother and father met in Samoa in 2001 and commenced a relationship shortly thereafter.  At the time the parents met, the father was working in Samoa for a transportation company, and the mother, who was born in Samoa, had four children from a previous relationship.  There are six children of these parents’ relationship however, only three of those children are subject of these proceedings.  Details of the parties’ six children are as follows:

   a)The parties’ first child, S was born in 2002 in American Samoa and is now aged 12.  S is currently residing with the father in New Zealand.

   b)The parties’ second child, E was born in 2005 in American Samoa and is now aged 9.  E is currently residing with the father in New Zealand.

   c)The parties’ third child, L was born in 2007 in Town F, Queensland and is now aged 7 and is one of the children the subject of this Application.

   d)The parties’ fourth child, J was born in 2009 in Town F, and is now aged 5 and he too is the subject of this Application.

   e)The parties’ fifth child, G was born in 2010 and is now aged 4.  The mother deposes that G has been adopted by the mother’s uncle and the father takes no issue with that.

   f)The parties’ sixth child, B was born in 2012 in Auckland, New Zealand and is now aged 2.  She is also the subject of this Application.

2. The mother has four children of a previous marriage, and had all of their surnames changed to Tallulah after the mother married the father.  The details of those children are:

   a)R born in 1993 and is now aged 21.

   b)W born in 1995 and is now aged 19.

   c)H born in 1998 and is now aged 16.

   d)K born in 2000 and is now aged 14.

3. The mother deposes that the children, H and K are residing with her in Australia.

4. On the father’s evidence, over the course of the relationship the parties spent periods living together or apart in between Samoa, New Zealand and Australia, depending on where the father’s employment took him.  It is the mother’s position that the children have spent the majority of their lives residing in Australia.[1]  In the father’s affidavit sworn 20 August 2014, attached to the Form 2 Application filed 30 October 2014, the mother and children resided in Australia from late October 2006 until 21 January 2011, at which time the mother and children returned to New Zealand.  Based on these dates, the subject children have lived in Australia for the following (approximate) portions of their lives prior to being retained in Australia:

   a)L has lived in Australia for three of her seven years.

   b)J has lived in Australia for nearly two of his five years.

   c)B has never lived in Australia.

   [1]Mother’s affidavit filed 9 December 2014, [6].

5. The father moved back to New Zealand in April 2009 for his employment.  Thus the family unit comprising the parents and the children lived in New Zealand together from April 2009.

6. The parties married in New Zealand in 2006.  The mother received her New Zealand citizenship in November 2012 and was issued a New Zealand passport in October 2013.  

7. It is not entirely clear when the parents separated.  The father deposes to the mother forming a new relationship in August 2013, and of his having discussions with the mother regarding whether their relationship was to continue in June 2014.  The mother’s evidence is that the parties separated in June 2013.  There is no forensic need to resolve that difference in accounts.

Circumstances of removal

1. In December 2013 the children L and J travelled from New Zealand to Brisbane to stay with family for the school holidays.  The mother did not travel with L and J.  The father maintains that this was upon the understanding that L and J were to return to New Zealand prior to the beginning of school in February 2014.  L was enrolled in a school in New Zealand to commence at the beginning of 2014.[2]  The children have not been returned since their departure.  The father maintains that he considered travelling to Australia to collect J and L but did not have the requisite funds to do so.[3]

   [2] Father’s affidavit sworn 20 August 2014 [6(c)] attached to the Form 2 Application filed 30 October 2014.

   [3] Father’s affidavit sworn 20 August 2014 [6(h)] attached to the Form 2 Application filed 30 October 2014.

2. On 31 March 2014 the mother travelled to Australia with the child B to see L and J.  It is her case that the father had earlier consented to her permanently relocating to Australia.  The father deposes that the mother told him that the purpose of the trip was just for a holiday for a period of one month, at the conclusion of which the mother would return to New Zealand with all three children.  The father maintains that he consented to the mother travelling to Australia solely on that basis, being for a one month holiday and to collect the children.[4]

   [4] Father’s affidavit sworn 20 August 2014 [6(j)-(k)] attached to the Form 2 Application filed 30 October 2014.

3. On 1 June 2014 the father travelled to Brisbane to see the subject children and the mother.  The father deposes that at this time he “hoped to gauge that she [the mother] would be intending to return to New Zealand with the children.”[5]

   [5] Father’s affidavit sworn 29 July 2014 [35] attached to the Form 2 Application filed 30 October 2014.

4. The father returned to New Zealand on 8 June 2014.  Upon his return the father began making enquiries as to the steps he could take regarding the care of his children, and sought legal advice.  The father contacted the New Zealand Central Authority on 11 July 2014.[6]

   [6] Father’s affidavit sworn 20 August 2014 [6(q)] attached to the Form 2 Application filed 30 October 2014.

5. On the father’s evidence, the mother travelled to New Zealand on 16 July 2014. At this time the mother allegedly stayed with the father, S and E in their home.  The father deposes that he believes the mother came back to New Zealand to “speak with Inland Revenue regarding Child Support payments.”[7]  The father believes that the mother had the passports of the subject children with her throughout this time in New Zealand.  The mother travelled back to Australia on 18 July 2014.

   [7] Father’s affidavit sworn 29 July 2014 [39] attached to the Form 2 Application filed 30 October 2014.

6. The mother deposes that she received and became aware of the application on 15 November 2014, when she returned from Samoa.  The application was provided to the mother by her aunt.[8]

   [8] Mother’s affidavit filed 9 December 2014, [45].

7. At paragraph 40 of his affidavit of 29 July 2014, attached to the Form 2 Application filed 30 October 2014, the father states that he is concerned that the mother may take the subject children from Australia to Samoa.

8. This matter came before me in the first instance on 7 November 2014.  On that date I made interim orders in what may be termed the “usual form” for an application such as this, including orders for the mother and subject children’s names to be placed on the Family Law Watchlist and restraining the mother from changing the children’s normal day to day residence.  Directions were made for the final hearing which proceeded on 12 December 2014.

Cross-examination at hearing

1. Given the divergence between the version of the mother, on the one hand, concerning the issues of consent and acquiescence in particular, and that of the father on the other, whose affidavit material contained adamant denials of the mother’s assertions concerning these issues, it appeared to the Court necessary to have some cross-examination of these witnesses to attempt to address that divergence.

2. In circumstances where the applicant was represented by Counsel and the mother was self-represented, I gave leave to the mother to have the assistance of a person described as her “spiritual sister” within her church, one Ms M, to assist the mother. As there was no suggestion that either the mother or Ms M have legal qualifications I attempted to provide some assistance to the mother in the questioning of the father that took place when he was cross-examined via telephone-link.

3. I interpolate here that whilst the applicant did not oppose cross-examination occurring, the written submissions of the applicant placed reliance upon a single judge decision of this Court which, as per the written submission, did no more than cite as the relevant authority the decision of the Full Court in Gazi v Gazi (1993) FLC 92-341 (“Gazi”).

4. Whilst not wishing to be unduly critical of the applicant Central Authority or those who are regularly retained to appear for the Central Authority on these applications, some of my recent experiences as the judge with primary responsibility for Hague Convention matters in this registry of written submissions relied upon in support of these applications have not been as helpful to the Court as they might be.  I refer in particular to the statements of legal principle to be applied and, specifically, the citation of authority in support of such statements.

5. A number of decisions of the High Court of Australia contain authoritative pronouncements of the principles to be applied on various aspects of the Regulations. These cases render it otiose, and potentially misleading, to cite single judge decisions in this Court; and decisions of the Full Court of this Court which pre-date those of the High Court and may thus no longer be good law, in light of the relevant High Court authority.

6. For example, in LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”) five members of the High Court joined in a judgment which, inter alia, comprehensively discusses the meaning of habitual residence and the approach to be taken to determining habitual residence where that may be an issue.

7. A submission, citing in support a decision at first instance in the trial division of this Court, that the question of habitual residence is “a mixed question of fact and law” (a proposition that is arguably doubtful in light of the discussion in LK) is of no utility.  It will be a rare case where anything usefully is to be gained from the citation of first instance decisions on the question of habitual residence in the light of LK, at least so far as statements of relevant principles to be applied are concerned, given that the statements of principle which bind trial division judges of this Court are those in LK, not those of other single judges in the trial division, even when these purport to be derived from LK.

8. If it be necessary to cite authority for a proposition then the highest and thus binding authority ought be cited.  Thus, for example, if it be thought necessary to cite authority for the proposition that the requirements of each of the five subparagraphs of Reg. 16(1A) must be satisfied if it is to be shown that a child’s removal to, or retention in, Australia is “wrongful”; then the decision of the High Court in LK at [8] ought be cited, not that of a single judge of the trial division of this Court.

9. As to whether or not any cross-examination is to be allowed on applications of this type, the appropriateness of citing the Full Court’s decision in Gazi (let alone that of a single trial judge simply quoting from that case) as the determinative authority, is open to considerable doubt.

10. In MW v Director-General, Department of Community Services (2008) 82 ALJR 629 Gummow, Haydon and Crennan JJ, joined in a judgment which, whilst not expressly stating that Gazi was wrong, emphasised that statements in that case were apt to mislead. Their Honours said, commencing at [49]:

    Nevertheless, prompt decision making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another. The references to “summary procedure” and to the dealing with applications on affidavit evidence and “in a summary manner” by the Full Court in In Marriage of Gazi are apt to mislead.  This is particularly true of the statement in that case:

    The primary purpose of the Convention, the relevant legislation and regulations is to provide a summary procedure for the resolution of the proceedings and, where appropriate, a speedy return to the country of their habitual residence of children who are wrongly removed or retained in another country in breach of rights of custody…Accordingly, whilst there may be cases in which it is appropriate to allow cross-examination of deponents of affidavits, such cases would be rare.  The majority of proceedings for the return of children, pursuant to the Convention, should be dealt with in a summary manner and cross-examination of deponents of affidavits would not be appropriate.

    [50]     The danger in reading such remarks too literally (and without regard to the circumstances of each particular case) is apparent in situations such as that considered in the United States by the Court of Appeals for the Third Circuit in In re Application of Adan…

    (Citations omitted and emphasis added)

1. Prior to the High Court’s decision in MW but subsequent to the decision of the Full Court in Gazi, in De L v Director-General & NSW Department of Community Services & Anor (1996) 187 CLR 640 Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said (at 660):

   The Convention requires the judicial or administrative authorities of Contracting States to "act expeditiously in proceedings for the return of children" (Art II). The system established for Australia by s 111B and the Regulations is one which engages the judicial power of the Commonwealth. Regulation 15(2), in its present form, obliges a court, so far as practicable, to give to an application such priority "as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows". Prompt listing for hearing is one thing; an over-hasty and insufficient hearing is another. That point is made in the concluding terms of reg 15(2) set out above. Further, there may be cases where, consistent with those precepts, some, even if restricted,
   cross-examination upon affidavits is appropriate to assist the court to reach a decision whether to refuse an order for the return of the child.

   (Footnotes omitted)

2. In LK the plurality stated at [15]:

   The second point to make about the procedures followed at first instance concerns the resolution of disputed questions of fact.  Three members of this Court pointed out in MW v Director-General, Department of Community Services that the requirements of the Regulations (reg 15) that applications by a Central Authority for an order for the return of a child are 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.  As the plurality reasons said, “prompt decision making … is one thing, and a peremptory decision upon a patently imperfect record would be another”.

   (Footnotes omitted, emphasis added)

3. This issue, and the authorities referred to, were more recently considered by the Full Court of this Court in Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472.

4. In my judgment the statement in Gazi, particularly if it is elevated to the status of a “general principle” that allowing cross-examination in cases of this type “would be rare” does not sit conformably with the statement of the plurality of the High Court in LK that there is no general, let alone inflexible, rule preventing cross-examination.

5. It seems to be that in any cases of this type, where there is a fundamental dispute on central issues of fact that must be resolved to determine the matter, there can be no general or overriding principle or rule to the effect that

   
   

   cross-examination is “rare” or that cross-examination ought ordinarily not be permitted.  Each case must be considered on its own merits.

6. In my judgment, if Gazi is said to give rise to such a “general principle” then such a principle cannot stand in the face of the High Court authorities referred to.

7. To this may be added the observation that if the role of a Central Authority is, as has been described, that of an “honest broker” and like that of a “Crown prosecutor” then a particularly important onus falls upon the Central Authority to fairly and fully cite binding authority on any issue in dispute.  In this respect it is to be noted that in RCB v Forrest (2012) 247 CLR 304 the High Court at [22] cited with apparent approval the judgments of Kay J in Laing and of the Full Court in Harris.  In Laing v Central Authority (1999) 24 Fam LR 555 Kay J, as a member of that Full Court, observed at [93]:

   … there is weight in the submission that the Central Authority needs to act to some degree as an honest broker.  Its role may be likened to that of a Crown prosecutor who is required to put before the Court matters which might assist the accused as well as matters which might lead to a conviction.  The Central Authority’s obligation is not to secure the return of the child but to implement the requirements of the Convention.

8. After setting out the terms of Reg. 5 as it then existed Kay J continued at [94]:

   If in implementing the requirements of the Convention it obtains the return of a child who ought to be returned then it is carrying out its function.  If it draws to the Court circumstances which might lead the Court to make an order other than the return of the child then it is also carrying out its function.

9. That statement has been cited with approval by subsequent Full Courts including in Re: F (Hague Convention: Child’s Objections) (2006) FLC 93-277 and Harris & Harris (2010) FLC 93-454.

Consent or acquiescence – habitual residence

1. It is trite that the applicant bears the onus of proof in respect of each of the elements in subregulation 16(1A) to establish that the removal or retention is “wrongful”.

2. Conversely, it is also trite that the respondent bears the onus of proof in establishing any of the grounds or exceptions sought to be relied upon in subregulation 16(3) to enliven the discretion in the Court not to make a return order.

3. Where, as in this case, consent is raised by the respondent it might be thought that a logical consequence of consent to removal is that such a removal is not wrongful and that the applicant, bearing the onus of establishing that the removal is “wrongful” must thus negative consent in discharging the onus the applicant bears.

4. However, it appears to be well accepted that the scheme of the Regulations, and of the Convention itself to which the Regulations give effect, contemplates that a removal or retention is to be regarded as “wrongful” in the first place but if the respondent establishes consent, a discretion arises for the Court not to make a return order.[9]

   [9] For example, Re:P-J (Children) [2009] EWCA CIV 588; Re: P (A Child) (Abduction: Acquiescence) [2004] EWCA CIV 971; Director-General, Department of Child Safety v Stratford (2005) FLC 93-249; BB v JB [1998] 1 ILRM 136; Sub nom B v B (Child Abduction) [1998] 1 IR 299.

5. That noted in cases where, as in this case, the respondent disputes that the subject child or children was or were habitually resident in the country of origin immediately prior to their removal and asserts facts or circumstances common to both the issue of habitual residence and alleged consent or acquiescence; the distinction between which party bears a particular onus becomes more difficult to draw or maintain.

6. In this case it is convenient to deal with the issues of consent, acquiescence and habitual residence together, given the commonality of factual issues raised in this case with respect to each.  However, the distinction between the applicant’s onus and that of the respondent, as referred to, remains.  Likewise, consent and acquiescence are mutually exclusive.

7. The mother deposes that the father consented to the mother moving to Australia with the subject children after they separated in June 2013.  The father denies any discussion regarding the mother and children moving to Australia having taken place prior to April 2014, after the mother had taken B with her to Australia.[10]  Further, the father deposes that he never consented to the children moving to Australia on a permanent basis.[11]  On the father’s version he only agreed to the subject children visiting for a holiday.

   [10] Father’s affidavit filed 4 December 2014, [6].

   [11] Father’s affidavit filed 4 December 2014, [8].

8. The mother states that the father purchased a one-way ticket for the child J to fly to Australia in December 2013, and that the mother’s aunt purchased a one-way ticket for the child L to fly to Australia on that same day.[12]  The father states that the reason for a one-way ticket being purchased for J to travel to Australia was due to the father having insufficient funds at the time to purchase a return ticket.[13]

   [12] Mother’s affidavit attached to the Form 2A Answer filed 28 November 2014, [7] & [8].

   [13] Father’s affidavit filed 4 December 2014, [9].

9. The child B and the mother both travelled to Australia in March 2014 on one-way tickets, which were purchased by the father.  B did not return to New Zealand after this trip to Australia.  The father asserts that the ticket was purchased on the basis of a one month holiday with the mother, and that the mother had stated she would bring all the children back to New Zealand at the end of that month.[14]

   [14] Father’s affidavit filed 4 December 2014, [13].

10. In her affidavit filed on 28 November 2014 the mother relevantly deposes as follows:

    3)     The applicant Father, [Mr Tallulah] and I separated in June 2013.

    4)     After separation I told [the father] I wanted to move to Australia.

    5)     I was the primary carer for the children and [the father] worked full time.

    6)     [The father] agreed that the children and I could move to Australia.

11. Notably the mother, who I repeat is self-represented, deposes to a conclusion in paragraph (6) above, that the father agreed to the children and the mother moving to Australia.  That is, the mother does not detail or particularise the relevant conversation or any statement made by the father to give rise to the stated conclusion as to his alleged agreement.

12. Shortly before the trial the mother filed a further affidavit which was filed on 9 December 2014.  Relevantly, in that affidavit the mother deposes as follows:

    24.In or about December 2013 I told [the father] I wanted to move to Australia but during that time my mind was not yet made up as I wanted to see how fast we would settle in.

    25.      [The father] agreed that the children and I could move to Australia.

    26.[The father] and I had a verbal agreement that he would release [S] and [E] once we settled in our own place and we were in receipt of Centrelink benefits.

    (Emphasis added)

13. Whilst again stating as a conclusion the father’s alleged agreement (rather than detailing the words used or the conversations involved) a striking feature of the mother’s latter affidavit is her reference to her being undecided about whether or not any move to Australia would be permanent.

14. Cross-examination of the mother at the trial by Counsel for the Central Authority produced, in my judgment, greater rather than lesser inconsistencies on this issue in the mother’s oral evidence.  Apart from being taken to her depositions referred to, the mother was also tested as to the contents of Exhibits 1 and 2 in the proceedings being the incoming passenger cards completed on 31 March 2014.  Notably the card completed for the child B by the mother on 31 March 2014 makes specific references to the entry being for a temporary visit only rather than permanent residence.  For example, in answer to the question “do you intend to live in Australia for the next 12 months?” the answer “no” is ticked.  The declaration constituted by the incoming passenger card by the mother is otherwise to the effect that the intended length of stay in Australia at that time was for only one month and that the purpose of coming to Australia was to visit friends or relatives.

15. The mother sought to explain these inconsistencies on the basis that she had not in fact reached any firm intention to permanently remain in Australia until after she (and the children) were here.  In my judgment, given that consent must be shown to be clear and unequivocal and given in advance of departure it is incongruous that the mother would suggest that the father had given such consent in circumstances where, on her own evidence, she had not held any concluded intention to remain permanently in Australia at any time up until, and including, her entry into Australia.

16. Conversely it would make no sense for the mother to positively assert what she did on the passenger card as to the specific purpose of the visit and its specified duration if a permanent position was in contemplation.

17. Whilst there are obvious difficulties in assessing a witness who gives evidence by telephone link as occurred with respect to the father; the father in his oral evidence was unshakable from the position that he had never at any time given the consent alleged by the mother.

18. In my judgment the mother does not discharge the onus of proof she bears with respect to the issue of consent.  Given the inconsistencies in her own evidence on this issue in the face of the father’s adamant denials; taken also with there being no reason shown to prefer the evidence of the mother in this respect as compared to that of the father; I prefer the father’s evidence on this issue.

19. As to acquiescence, in Department of Family and Community Services & Raelson [2014] FamCA 131 delivered on 14 March 2014 I extracted the following propositions from the authorities as follows commencing at [100] of the judgment:

    100.The following propositions, which may seem trite, are stated because of the manner in which the Central Authority addressed this issue (or at least my perception as to that approach) which seemed to at times blur some important distinctions or to confuse the test as to when acquiescence is established. The following propositions are distilled from Re H (Abduction: Acquiescence) [1998] 2 AC 72[15]; 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 estop 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 subjective 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.

    [15] As applied by Holden CJ in Commissioner, Western Australia Police v Dorman (1997) FLC 92-766 and SCA v Sigouras (2007) 37 Fam LR 364.

20. Those are the principles I intend to apply to this issue in this case.

21. The father maintains that L and J travelled from New Zealand to Brisbane to stay with family for the school holiday period at the end of 2013. The father maintains in both his affidavit evidence and in his oral evidence when cross-examined that this was upon the understanding that L and J were to return to New Zealand prior to the beginning of the school year in New Zealand in February 2014.  The father refers to the feature that L was enrolled in a school in New Zealand to commence at the beginning of 2014.[16]

    [16] Father’s affidavit sworn 20 August 2014 [6(c)] attached to the Form 2 Application filed 30 October 2014.

22. As already noted above, the father positively deposes that the mother told him that the purpose of the March 2014 trip was “just for a holiday” and for a period of one month at the conclusion of which the mother would return to New Zealand with all three children.  In his affidavit he deposes to considering travelling to Australia himself to collect the children J and L but that he did not have the requisite funds to do so.

23. It is clear from both the father’s affidavit evidence and his oral evidence at trial that throughout the relevant period the father remained hopeful that the mother would voluntarily return to New Zealand with the children.

24. The mother states that she travelled back to New Zealand in or around late August 2014 for a period of three days to visit her granddaughter who was undergoing surgery.  The mother deposes that the father paid for half of her airfare to return to Australia from New Zealand.  The father admits to “paying for the Respondent’s [mother’s] air fare back to Australia.”[17]  The father concedes that had he not paid for the flight she may have been forced to stay in New Zealand, however was concerned that “she was still actively trying to get [S] and [E] out of New Zealand and had even raised the question as to how one could get urgent passports.”[18]  The father maintains that his focus was on getting the children who were in Australia back to New Zealand.

    [17] Father’s affidavit filed 4 December 2014, [17].

    [18] Father’s affidavit filed 4 December 2014, [17].

25. The mother deposes that the father completed a change of tenant form dated 17 April 2014 which had the effect of removing her name from the lease of the rental property located at N Street, Suburb O, Auckland, New Zealand.[19]  The father states that this was done at the request of the mother, and concedes that this was “probably the first clear indication that she was not going to be returning to New Zealand.”[20]  In his oral evidence the father explained that he simply did as the mother asked, not because he ever wavered from the desire that the children be returned to New Zealand.

    [19] Mother’s affidavit attached to the Form 2A Answer filed 28 November 2014, Annexure LKT-1.

    [20] Father’s affidavit filed 4 December 2014, [14].

26. Annexure B to the mother’s affidavit filed 9 December 2014 is a letter by her cousin, Ms P, regarding a verbal agreement between herself, the Mother and the Father.  The first paragraph of the letter reads:

    This letter is to confirm that a verbal agreement was made with the parents of [J] DOB …/2009 and [L] DOB …/2006 on 12/12/2013 to travel to Australia and be cared for by me.  The agreement was that the above named children would be cared for by me.  The agreement was that the above named children would be housed and financially supported by myself and my mother [Ms Q] for a period of time.  Whilst in my care, the children would be enrolled into the local school, I would provide clothes, food, shelter and basic necessities. 

    (Emphasis added)

1. The letter continues to detail the dates that the mother and the subject children lived with Ms P at U Street, Suburb V.  The letter details that on approximately 9 October 2014 the mother and “her children” (J, L, B, H and K) moved out of Ms P’s house and into a rental property, where the Mother has had “full care” of the children.

2. There are various allegations by the mother regarding discussions between the parents agreeing about the children S and E moving to Australia with the consent of the father and at his expense.[21]  The father denies any such discussions, and deposes that S and E only want to visit their siblings in Australia.[22]

   [21] Mother’s affidavit filed 9 December 2014, [35] and [36].

   [22] Father’s affidavit filed 4 December 2014, [16].

3. Pursuant to the Form 2 Application, approximately one week after the children L and J had travelled to Australia the mother spent a period of two and a half months in Samoa.  The Application at paragraph 6(s) reads:

   The father states that, upon the mother’s return to New Zealand from Samoa in February 2014, he did not have any specific discussions with her about the return of [L] and [J] from Australia.

4. After the mother and B arrived in Australia in early April 2014, the father alleges that the mother told him she would not be returning to New Zealand.  Paragraph 6(x) of the Application reads:

   The father states that he did not, at that time, put any pressure on the mother to return the children to New Zealand as he still held out the hope of being able to keep the family together back in New Zealand.

5. At paragraph 21 of his affidavit filed 4 December 2014, the father deposes:

   … I had not pressed the Respondent [mother] as actively as I should have (in hindsight) for the return of the children to New Zealand as I was under the belief there would be no money for the Respondent [mother] and the children from the Australian Government for New Zealand citizens and that they would be forced to return to New Zealand for those financial reasons.  For whatever reason, the Respondent [mother] appears to have been able to get financial assistance from the Australian Government.  I am unclear as to the information that she may have provided them in that regard.

6. This appears, on one level, to be contradictory to paragraph 11 of the same affidavit of the father, which annexes a letter dated 21 February 2014 signed by the father and including a copy of his passport.  The letter reads:               

   [Mr Tallulah]

   P O Box …
     …
     Auckland 2150
     New Zealand
     21 st Feb 2014

   To Whom It May Concern:

   This letter is to advise that [Ms P] of … [Y Street] [Town Z] 4… Queensland Australia, is the caregiver for my two children [L] Dob … 2007 passport … and [J] Dob … 2009 passport … while they are in Australia. [Ms P] can act on my behalf for the best interests for [L] and [J] while they are in her care.  If you require any other information please feel free to contact me at the above address or my email … .

   Your [sic] faithfully,

   [Mr Tallulah]

7. Ms P is the mother’s cousin (the daughter of the aunt with whom L and J were living in Australia).  The father deposes that this letter was written,

   [T]o assist them in making an application to Centrelink.  Funds were short both for me and for the Aunt.  I was focussing on raising the funds to be able to get the children back to New Zealand.  The Respondent [mother] was still in Samoa at that time.[23]

   [23] Father’s affidavit filed 4 December 2014, [11].

8. The mother alleged that this same letter was written by the father to the State School in Town A confirming that the children J and L had the father’s permission to be enrolled in the school.[24]  However, the mother conceded under cross-examination that no such letter was ever written by the father to the school.  J and L were subsequently enrolled in that school from 24 March 2014.[25]  The father denied having ever written a letter to the State School in Town A consenting to the children being enrolled at that school, and states that he was unaware of what school J and L attended prior to June 2014 when he visited Australia.  Clearly, given the mother’s concession in cross-examination, the father’s version is accurate.

   [24] Mother’s affidavit filed 9 December 2014, [29].

   [25] Mother’s affidavit filed 9 December 2014, Annexure G.

9. The mother contends that after she had moved to Australia with the three subject children, the father “continued to show his support” of them living in Australia.  The mother annexes photographs of Facebook messages where the father requests photographs of their new house and suggests ways in which they can obtain furniture and white goods for the house.[26]  One of the photographs in annexure I shows a message allegedly sent by the father on 15 October 2014, in which he asks “was it the 2 lots of clothes that you pack [sic] in the girls [sic] room to come over to you”.

   [26] Mother’s affidavit filed 9 December 2014, [54] and Annexure I.

10. I accept the father’s evidence that he had given consideration to travelling to Australia to collect the children but did not have the requisite funds to do so.

11. I also accept the father’s evidence that when he travelled to Brisbane in June 2014 to see the children and the mother it remained his hope that the mother would voluntarily return to New Zealand with the children.

12. I am satisfied, on the father’s evidence, that when the mother and B travelled to Australia in March 2014 on one-way tickets purchased by the father, the father purchased such tickets on an understanding that there would be a one month holiday in Australia with the mother bringing all of the children back to New Zealand at the end of that month.

13. I am satisfied on the father’s evidence that his focus at all times remained upon having the children returned to New Zealand and it was his hope that the mother would voluntarily return them and indeed return herself to New Zealand.  In short, on the father’s evidence which I accept, at all material times there were the allied factors of a lack of financial means and the father’s hope or expectation that the mother would, eventually, voluntarily return the children to New Zealand.

14. There was also evidence of the father having at least investigated the prospect of his securing employment in Australia and potentially moving here as well with the other children. I accept the submissions on behalf of the Central Authority that that conduct does not amount to acquiescence taken in context. The father confronted the dilemma that three of the parties’ biological children remained in Australia whilst three of them were in New Zealand. That he considered, even temporarily, the option of his relocating with the other children to Australia does not in the circumstances constitute acquiescence. Rather, it is to be seen as the father exploring options to reunite or reunify the family or children and it does not follow that simply because he investigated that option that this constitutes acquiescence within the meaning of the Regulations.

15. Consequently I am not satisfied that the mother has discharged her onus of proving acquiescence by clear and cogent evidence.  I am not satisfied that it is established by the words or actions of the father that these show, clearly and unequivocally, that the mother was led to believe that the father would not assert a right to summary return of the children.  In my judgment the words or conduct of the father referred to are not sufficiently clear and unequivocal as to demonstrate that the mother was led to believe that the father was not going to insist upon summary return.

16. In many cases there is more than one possible interpretation of words and conduct in question and the relevant context needs to be considered in interpreting the words or conduct.  In Re C (Abduction): Consent [1996] 1 FLR 414 the left-behind parent helped the abductor to pack or sell household items whilst in Dimer v Dimer, No 99-2-03610-7 SEA (Wa Sup CT July 29, 1999) the left-behind parent later shipped the belongings of the abductor and child to the country of refuge.  In both cases the relevant context to those events displaced the conclusion that acquiescence had occurred.

17. So too in this case the relevant context to which I have referred dispels the notion that acts or conduct which might be capable of being interpreted as acquiescence are in fact that when the contextual background that existed is considered.

18. For these reasons I am not satisfied that the mother has established acquiescence.

19. As to habitual residence, in LK’s case the High Court pointed to the broad factual enquiry involved in determining a child or children’s habitual residence, which falls to be considered as at the time of wrongful removal or wrongful retention.  In my judgment there cannot be any doubt that the children were habitually resident in New Zealand prior to their respective removals and/or retentions in Australia.  As earlier noted the family were reunited and living together in New Zealand from April 2009.  I am satisfied that it was only ever intended that J and L were to travel to Australia for the school holidays at the end of 2013 and were due to return to New Zealand.  I am satisfied on the father’s evidence that the intention of B’s travel to Australia was for a temporary visit as is consistent with Exhibits 1 and 2 and the evidence and findings already recorded.

20. It follows that immediately prior to February 2014 when they were retained in Australia J and L were habitually resident in New Zealand; and likewise when the one month period expired from B’s travel to Australia in March 2014 she was likewise habitually resident in New Zealand.

21. I am thus satisfied that the Central Authority has established each of the matters required by the relevant subregulation. 

Grave risk of harm

1. This ground of exception was almost entirely raised and argued by the mother with respect to her older biological children.  That is, her complaints about the father’s attitudes or conduct towards the mother’s other children who are not his biological children, was, save in one respect, the sole basis upon which the mother sought to argue this exception.

2. Put another way, the mother did not point to any evidence directly concerning the children the subject of this application as would give rise to there being even any arguable basis for the exception, let alone the exception being made out.

3. The mother deposes that the father was “violent” and showed “unkindness” towards the mother’s four children of a previous marriage.  H and K are living with the mother in Australia; R and W are living in New Zealand separate from the father.  The mother describes an incident where the father made R and W sleep outside the house, and that he would treat them differently from his biological children.[27]  The mother’s examples of this treatment include the father cooking different meals for his stepchildren and biological children; buying items for his biological children and that he would “purposely not buy anything for my older children even when I have requested.”[28]  This conduct, even if true, does not support any conclusion to the effect that the children the subject of this application are at grave risk if a return order is made.

   [27] Mother’s affidavit filed 9 December 2014, [13] & [21].

   [28] Mother’s affidavit filed 9 December 2014, [22].

4. The mother asserts an incident where the father was allegedly “indecent and violent” towards the mother’s daughter, K.  Specific details pertaining to this incident are not included in the materials.  The mother deposes that after this alleged incident Suburb O School and a social worker were involved and providing “assistance and counselling”.  The mother deposes that the father did not assault or harm any of his biological children, however the mother states she had “a lot of concerns for the safety and welfare of my kids”.[29]  On the mother’s version, the children “[S] and [E] are always left home alone by their father unsupervised.”[30] Although these two children are not the subject of these proceedings, a letter signed by [W] (the mother’s second child from her former marriage) is attached to the affidavit and describes the two children being left home alone while the father is at work.[31]

   [29] Mother’s affidavit filed 9 December 2014, [20].

   [30] Mother’s affidavit filed 9 December 2014, [32].

   [31] Mother’s affidavit filed 9 December 2014, annexure C.

5. In my judgment, even if the complaint about supervision were made out this falls well short of the kind of risk to meet the requisite standard to establish the grave risk of harm contemplated in the Regulations.

6. The mother does not establish this ground of exception even if her evidence directed to it is placed at its highest.

Conclusion

1. In my judgment the Central Authority, having established the requirements of each of the five subparagraphs of Reg. 16(1A), and no ground of exception being made out or established by the respondent mother a return order must be made in respect of the children the subject of this application.

2. I record that on the father’s case, which was not put in issue, the father has rights of custody and that the removal or retention of the children in Australia is in breach of those rights.

3. For these reasons I make orders in terms of the draft order provided by Counsel for the Central Authority with the deletion of proposed paragraph 2 in the draft which, in submissions, Counsel confirmed was no longer pursued as the father apparently intends to fund the children’s return flights to New Zealand.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 15 January 2015.

Associate: 

Date:  15 January 2015