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

[2012] FamCA 823

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & TAPITA [2012] FamCA 823

FAMILY LAW – CHILDREN - Hague Convention - Where the Respondent Mother contends that the Father consented to the children moving to Australia from New Zealand - Where the Father submits that he consented to one child coming to Australia for an extended holiday but not on a permanent basis - Where cross-examination was required to determine disputed issues of fact

Care of Children Act 2004 (NZ)
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Hague Convention on the Civil Aspects of International Child Abduction

Department of Health and Community Services v Casse (1995) FLC 92-629
Director-General, Department of Child Safety & S (2005) FLC 93-249
Director-General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Regino & Regino (1995) FLC 92-587

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

RESPONDENT: Ms Tapita

FILE NUMBER: BRC 7040 of 2012

DATE DELIVERED: 26 September 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 21 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGregor

SOLICITOR FOR THE APPLICANT: Crown Law

Orders

1. K, born … February 2011, and N, born … June 2006 (“the children”) be returned to the country of New Zealand and for the purposes of giving effect to that Order:

   (a)       The children leave the Commonwealth of Australia on or before midnight on 4 October 2012;

   (b)       The children arrive in New Zealand on or before midnight on 5 October 2012;

   (c)       Pending the children returning to New Zealand, Ms Tapita (“the Respondent”), continue to be restrained and an injunction hereby issue restraining her from removing or attempting to remove the children from the Commonwealth of Australia;

   (d)       Pending the return of the children to New Zealand, the Respondent continue to be restrained and an injunction hereby issue restraining her from changing the residence of the children from the premises where she and the children are currently residing, namely Property M in the State of Queensland, Australia;

   (e)       Subject to sub-paragraph (f) below, the Commissioner and all Federal Agents of the Australian Federal Police retain the names of the Respondent and the children on the All Ports Watch Alert System at all international departure points in Australia;

   (f)       The children and the Respondent be removed from the All Ports Watch Alert System upon receipt of a letter from an officer of the Court Services Unit, Department of Communities, Child Safety and Disability Services, advising of the travel arrangements made for the children to return to New Zealand from 12.00am on the date nominated for the said travel in that letter;

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

   (h)       To facilitate the return of the children, an officer of the Department of Communities, Child Safety and Disability Services be at liberty to release to the Respondent all current passports relating to the children for the purpose of the children’s return and to release the passport of the Respondent to her or her nominee upon her request;

   (i) Liberty to apply be granted to the Applicant to seek any further Orders necessary to allow her 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 these Orders and pursuant to the Central Authority’s obligation under reg 20 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

2. The Respondent 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, and in the event that the Respondent fails or refuses to pay those expenses, the Respondent pay to the Applicant the necessary expenses incurred by or on behalf of the Applicant and Mr P in returning the children to New Zealand within two (2) business days of the Applicant making a written demand for reimbursement of the said expenses.

3. All other applications be dismissed.

4. There be liberty to apply.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tapita & Director-General, Department of Communities, Child Safety and Disability Services & Tapita 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 7040 of 2012

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

Applicant

And

Ms Tapita

Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 6 August 2012, the Director-General, Department of Communities, Child Safety and Disability Services (“the Applicant”), in her capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) applied for final Orders that the children, N, born in June 2006, and K, born in February 2011, be returned to the country of New Zealand.

2. The Regulations, which are made under ss 111B and 111D of the Family Law Act 1975 (Cth) (“the Act”) give effect to the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”), which is set out in Schedule 1 to the Regulations. This Convention came into force in Australia on 1 January 1987 and in New Zealand on 1 August 1991.

3. The person who made the ‘request’ within the meaning of reg 2 of the Regulations is the children’s father, Mr P (“the Father”), who is currently residing in New Zealand. The Respondent to this application is the children’s mother, Ms Tapita (“the Respondent”).

4. On 14 August 2012, being the first return date of the application, I made a number of Orders, including injunctions, having regard to the content of the Form 2 Application and the material filed in support of it which established a prima facie case for a return Order to be made. I also made directions for the filing of material and for the trial of the proceedings to be set down on 17 September 2012.

5. When the matter came before me on 17 September 2012, it was apparent that there was a factual dispute, on the material filed by the Applicant on the one hand, and that filed by the Respondent on the other, as to the circumstances in which the children came to be in Australia. In short, the Respondent contended as a matter of fact that the Father had given his consent to the children’s removal from New Zealand to Australia and/or their retention in Australia and the Father refuted that.

6. In those circumstances, I considered it necessary to the disposition of the proceedings that there be the opportunity for the cross-examination of relevant witnesses on that discrete issue. I therefore adjourned the trial of the proceedings to enable arrangements to be made for the cross-examination of relevant witnesses to occur last Friday, namely 21 September 2012.

Brief Background

1. The Father was born in New Zealand, in 1988. The Respondent was born in New Zealand in 1988. Both parents are New Zealand citizens by birth and retain New Zealand nationality.

2. N was born in New Zealand in June 2006 and K was born in New Zealand in February 2011. Until the more recent events described, the parents and the children lived in New Zealand.

3. The Father and the Respondent briefly had a relationship whilst they were still in high school between late August 2005 and about late October 2005, during which time the Respondent became pregnant with N. The parents have never married and were not living together when N was born.

4. The Father was unaware of N or her birth until approximately one year and nine months after N had been born. In the event, the parties reconciled and commenced a de facto relationship on about 1 March 2008. They were continuing to live in a de facto relationship when H was conceived and born in February 2011.

5. Either during that period of reconciliation or subsequently, the parents caused the Father’s name to be added to the birth certificate of N as her father.

6. The parties give conflicting versions as to the periods when they were cohabiting and in a relationship. The Father describes their relationship as being, “…on and off…” from their reconciliation in early 2008 until the events giving rise to the current application, whilst the Respondent suggests that although the relationship came to an end in mid-June 2011, it was, “….on/off…” in the period between December 2011 to June 2011. The Respondent also deposes to the effect that during periods of separation, she and the Father were maintaining a relationship, including a sexual relationship.

7. It is clear that K was conceived and born during a period of reconciliation between the parties, and the Father is identified on her birth certificate as her biological father.

8. On the Respondent’s case, she formed the intention or decided that she wished to migrate to Australia with N and K in July 2011. The Respondent also asserts that it was in July 2011 that the Father’s name was added to N’s birth certificate.

9. As already noted, even on the Respondent’s account, the relationship between her and the Father resumed from time to time between December 2011 and June 2012. At the time of the hearing, the Respondent was pregnant with another child, and it is not in issue that the Father is the father of that unborn child. The Respondent is due to give birth in about three weeks’ time.

10. On the Respondent’s account, by February of this year she and the Father were again separated and, due to her advancing pregnancy, she wished to advance her plans to move to Australia. It is the Respondent’s case that throughout this period, the Father was aware of her plans to relocate to Australia. Whilst the Respondent conceded that the Father was initially against any such move, she asserts that the Father ultimately relented and consented to her moving with the children.

11. The Father’s case is that he never consented to any permanent relocation of either of the children to Australia.

12. On the Respondent’s case, by April 2012, the Father also decided that he, too, would move to Australia, and on this basis, the Respondent says that she delayed her plans so that he might save some money pending his move to Australia. The Father denies that there was ever any firm plan by him to come to Australia.

13. It is not in issue that in May 2012, the Father and the Respondent agreed for N to be in the care of the Respondent’s mother from 26 May 2012, and that on that date, N travelled with her maternal grandmother to Australia. The Respondent’s case is that N departed for a permanent move to Australia with the knowledge and consent of the Father. The Father, whilst acknowledging that he consented to N coming to Australia, asserts that his consent was for a temporary visit only and that it was always intended that N would be returning to New Zealand before the commencement of the 2013 school year in New Zealand.

14. On both the Father and the Respondent’s depositions, on 9 June 2012, there was an argument and confrontation between them which involved the police attending. The Respondent acknowledged in cross-examination that she knew at that time that the Father was not consenting to K coming to Australia and acknowledged in her oral evidence that her removal of K to Australia was contrary to the Father’s then wish that K remain living in New Zealand.

15. On the Father’s case, the Respondent only told him when they were returning from the airport on 26 May 2012 after N departed with her maternal grandmother words to the effect that N would not be coming back to New Zealand. The Respondent denies saying this.

Oral Evidence

1. As the Father remains a resident of New Zealand, and was not present at the hearing, his cross-examination proceeded by telephone.

2. In the course of his cross-examination, the Father readily agreed with the Respondent that the relevant June 2012 altercation occurred at his mother’s home, rather than at the home of Respondent’s uncle, as he had earlier deposed.

3. The Father was not moved in cross-examination from his version as to several critical matters. First, he was adamant that he had never given consent to the children being removed from New Zealand on a permanent basis. He firmly maintained that N’s travel to Australia in May 2012 with the maternal grandmother was part of an agreement for N to have the opportunity to have a holiday in Australia and that it was always envisaged that N would be returning, “…at around Christmas 2012.” The Father acknowledged, and indeed asserted in his affidavit in support of the application, that he signed a document addressed, “To whom it may concern,” in advance of N’s departure, confirming that the parents had agreed that N would be in the care of the maternal grandmother, Ms A.

4. Second, the Father remained adamant that he first knew of the Respondent’s plan for N to remain in Australia when returning from the airport with the Respondent after N’s departure. Third, the Father was adamant in his denial that he ever firmly planned to move to Australia. Finally, the Father also adamantly denied ever having told a former partner of his, Ms C (a witness relied upon by the Respondent), that he had agreed or consented to the children coming to or living in Australia.

5. Mr McGregor of Counsel for the Applicant cross-examined each of the Respondent and the Respondent’s mother, Ms A, in person, as they both attended the hearing, whilst the Respondent’s witness, Ms C, who provided an affidavit filed on 28 August 2012, was cross-examined by telephone as she is a resident of north Queensland.

6. As already noted, the Respondent conceded under cross-examination that the Father did not consent to K being removed from New Zealand. She acknowledged in oral evidence that as a result of police involvement in the altercation which occurred in June 2012, an agreement was struck whereby K was to be spending alternate weeks with the Respondent and the Father, and that despite this agreement, the Respondent removed K from New Zealand by deception without informing the Father in advance and without his knowledge or consent.

7. As to the “agreement” alleged by the Respondent with respect to N, much of the Respondent’s cross-examination focussed upon a series of e-mail communications attached as Annexure C to the Respondent’s affidavit filed 28 August 2012. The Respondent acknowledged in cross-examination that the text messages commencing in March 2012 were initially framed as seeking the Father to, in effect, improve himself and his circumstances, with the Respondent essentially asserting that if he could not, “…prove himself…” she would relocate to Australia. The Respondent acknowledged that notwithstanding the exchange of text messages over the period, nowhere in those messages was it recorded that the Father acknowledged anything by way of consent to the children or either of them being relocated permanently to Australia. The Respondent acknowledged at least one message in March 2012 as clear confirmation from the Father that he was not prepared to agree to any plan involving the children being relocated to Australia.

8. In this context, I note that there is attached to the affidavit of the Father a letter written by the Respondent subsequent to her removal of K and herself to Australia. The Respondent was not cross-examined about that letter, but submissions were made in relation to it. Suffice to note here that the terms of that letter are largely apologetic and do not assert matters consistent with some agreed plan that the Respondent should come to Australia with the children. Put another way, I cannot read that letter as corroborating the Respondent’s version to the effect that the Father consented to either child being relocated to Australia. To the contrary, it reflects that the Respondent’s removal of K from New Zealand occurred without the knowledge or consent of the Father.

9. The effect of the oral evidence of Ms A, the Respondent’s mother, was, I find, at best to make it ambiguous as to whether or not the Father ever consented to the children, or either of them, being relocated to Australia. Certainly on Ms A’s evidence, discussions took place in the presence of the Father about the proposed relocation of the Respondent and the children, but by her own admission, the Father never said much in her presence and she was unable to give a clear or firm version to the effect that the Father expressed his unequivocal agreement or consent to any permanent move to Australia. On her evidence, I find that, at best, there may have been discussions of ideas or perhaps even future possible plans from time to time of the family as a whole living in Australia, but I am not satisfied on her evidence that there is clear evidence of the Father consenting to the permanent relocation of the children.

10. As already noted, it is not in issue that N travelled with Ms A to Australia in May 2012. However, again, I am not persuaded on Ms A’s evidence that the Father ever acknowledged to her or in her presence anything to the effect that he understood this to be some permanent living arrangement; that is, that N would be living in Australia permanently.

11. An affidavit of Ms C was filed on 28 August 2012 and, as noted, Ms C was cross-examined by telephone at the trial. The relevant deposition of Ms C, contained in paragraph 2 of her affidavit, is brief and unclear:

    [The Father] always told me [the Respondent] wanted to move to Australia with the kids and he gave her permission to do so from August 2012. We even discussed moving to Australia as a couple so he could be closer to the kids.

12. Under cross-examination, Ms C acknowledged that her relationship with the Father ended in February 2012 and confirmed that that would have been the last opportunity for the Father to be saying to her the things she attributes to him as deposed to in the affidavit.

13. Of course, the Father, as already noted, was adamant in his denials that he had ever said such things to Ms C, and asserted that it was her ill-will towards him that caused Ms C to support the Respondent in these proceedings.

14. In any event, there is an obvious internal inconsistency between the Respondent’s own evidence to the effect that there were text messages in March 2012 in which the Father recorded his opposition and lack of consent to any move, and Ms C’s version to the effect that the Father, “…always told me…” the things she alleges, particularly in circumstances where their relationship ended in February 2012.

15. Even less convincing is Ms C’s version to the effect that the Father gave the Respondent permission to move to Australia with their children specifically, “…from August 2012.” Obviously, August was when the current application was filed. Not even the Respondent suggests a version to the effect that August 2012 was a relevant date.

Findings on Disputed Issues of Fact

1. It should be noted that the Respondent relied upon an affidavit by her aunt, Ms R, and an affidavit by her uncle, Mr R, both filed on 28 August 2012. Neither of these witnesses were required for cross-examination.

2. That they were not required for cross-examination is unsurprising given the content of their affidavits. In the case of the aunt, Ms R, there is no deposition that this witness directly heard the Father ever provide relevant consent or indeed that she personally witnessed the Father being told directly of the Respondent’s plan. Importantly, after discussing events as at February 2012, Ms R deposes in paragraph 6:

   [The Respondent] then changed her mind to make it work with [the Father] instead in April. He then moved in with us and made plans to move as well at a later date. My sister asked both [the Respondent] and [the Father] if she could still take [N]with (sic) her to [Australia]. They both agreed and signed an affidavit giving confirmation that [N] will be in my sister’s care migrating to Australia. My sister and the girls left for Australia on 26 May.

1. As would appear from that deposition, whatever the Respondent’s plans were prior to April, by April 2012 the Respondent was intent on reconciling her relationship with the Father. Nowhere else in Ms R’s affidavit is there relevant evidence on the critical issue of consent which corroborates the Respondent’s version of events.

2. Likewise, the affidavit of the Respondent’s uncle, Mr R, is expressed in similar, although not identical, terms. There is, in paragraph 3 of that affidavit, the assertion that the Respondent had told the Father, “…what is going on…” and that the Father, “…already knew of her intention of migrating to Australia since last year,” but importantly, paragraph 4 is as follows:

   4. Somehow [the Respondent] changed her mind to make it work with [the Father]. They agreed on moving to Australia as well after they get what is needed to do so. …

3. Putting that version at its highest, any agreement to a move to Australia was conditional. There is no deposition by this witness to the effect that he heard the Father agree to a permanent move by the children to Australia without the Father also relocating or, indeed, to any move or relocation of the children to Australia on a permanent basis at all.

4. I accept the Father’s evidence, both affidavit and oral, that he never agreed or consented to either of the children being permanently relocated to Australia. I accept his evidence that he was participating in their care, both in the period when the parents were living together and during the periods of separation.

5. I accept the Father’s evidence that when he agreed for N to come to Australia with the maternal grandmother, Ms A, that agreement did not extend to an agreement for N’s permanent relocation to Australia. Rather, I accept the Father’s evidence that it was his understanding at all times that N would be returning to New Zealand.

6. I accept the Father’s evidence that as at 26 May 2012, when N came to Australia, he had not agreed or consented to that move being a permanent one. I accept the Father’s evidence that he had no knowledge of the Respondent’s plan to remove K from New Zealand to Australia in June 2012 and that he did not agree or consent to that occurring. To the contrary, his evidence was that the parents had agreed on a shared care/week-about arrangement for K’s care, and the Respondent, in the end, did not dispute that version of events.

7. I find that the Respondent’s letter, written to the Father after the Respondent had relocated to Australia with K in June 2012 and attached to his affidavit, does not corroborate her version that the relocation was simply part of an earlier agreed plan or was consistent with any consent given by the Father to a permanent relocation. To the contrary, the contents of the letter do not sit at all well with the Respondent’s assertions that she had removed K with the Father’s consent.

8. I have no doubt that from mid-last year, the Respondent probably was speaking to the Father in terms that she wished to relocate to Australia with the children, and that that prospect may indeed have been raised by the Respondent in her attempts to have the Father improve himself and his circumstances for the benefit of the family. However, at best, this amounts to the Father being aware prior to June 2012 of threats made by the Respondent to act in the way in which she ultimately has in relocating with the children to Australia, and is significantly different to the case she attempted to present at trial that the Father not only knew of her intentions or plans, but consented to them.

9. I reject the Respondent’s version that the Father ever gave his unequivocal consent to the children permanently relocating to Australia. Likewise, whilst I can accept that it may well have been the case that the Father himself spoke about the possibility of one day relocating to Australia, I do not find that this ever amounted to, as the Respondent asserted, a firm or fully formed intention on his part to do so.

Resolution of the Application

1. Prior to the matter being adjourned on 17 September 2012, Counsel for the Applicant provided to the Court and to the Respondent a document described as, ‘Applicant’s Case Summary Document’, which contained extensive written submissions running to some 89 pages.

2. One benefit of the matter being adjourned on 17 September 2012 was that it gave the self-represented Respondent some better opportunity than might otherwise have been the case of considering the detailed written submissions provided on behalf of the Applicant.

3. Much of those extensive written submissions address the Convention in general and do not have particular relevance to the circumstances of this case. A simple example is that detailed submissions were made in that document about the reg 16(3) exception of a child objecting to return, something that was never raised as an issue in these proceedings. It is thus unnecessary to deal with many of the submissions addressed by the Applicant as they are not specifically relevant to the issues in dispute on this application.

4. I make the observation that the already daunting prospect of a party in the position of the Respondent having to represent themselves in proceedings is made no less daunting by being confronted with a tome of this kind which, as noted, addresses many features of the Convention that did not have any relevance to the current application. I express the Court’s invitation to the State Central Authority to give careful consideration to the written submissions provided to the Court and thus to a self-represented respondent in circumstances such as these in the future.

5. Regulation 16(1) contains the juridical source of power for a return Order to be made on this application. There is no issue that an application is made for a return Order for each child and that it was filed within one year after each child’s removal or retention. Regulation 16(1) mandates a return Order if a child’s removal or retention was wrongful under reg 16(1A), subject to reg 16(3).

6. Regulation 16(1A) sets out the elements the Applicant has the onus of establishing for this Court to conclude that the children’s removal to or retention in Australia is wrongful.

7. Regulation 16(3) expresses a discretion for refusing to make a return Order if a person opposing return establishes one or more of the matters identified in that sub-regulation.

8. Before dealing with the specific elements, I record that pages 23 to 31 (inclusive) of the Applicant’s written submissions address numerous authorities, both at trial and Full Court level in Australia, England and elsewhere, under the heading, “Consent: its relevance to establishing a breach of rights of custody and the interplay with regulation 16(3)(a)(ii).”[1]

   [1] Regino v Regino (1995) FLC 92-587; Re C (Abduction: Consent) [1996] 1 FLR 414; Re O (Abduction: Consent and Acquiescence) [1997] 1 FLR 924; Director-General, Department of Families v P (2001) FLC 93-077; Matthews v Davidson & Ors (unreported, Family Court of Western Australia, Tolcon J, 27 May 2002); M v M [2005] NZFLR 67; State Central Authority v D [2003] FamCA 849; Re P (A Child)(Abduction: Custody Rights) [2004] All ER (D) 520 (Jul); T v T (Abduction: Consent) [1992] 2 FLR 912; B v D (Child Abduction) [1998] 1 IR 219; Baxter v Baxter (unreported, US Court of Appeals, Third Circuit, 15 September 2005); Director-General, Department of Child Safety v S (2005) FLC 93-249; Wenceslas v Director-General, Department of Community Services (2007) FLC 93-321; MW v Director-General, Department of Community Services (2008) 39 Fam LR 1; Re P-J (Children)(Abduction: Consent) [2010] 1 WLR 1237.

9. To the extent that these submissions contend for the conclusion that an issue of ‘consent’ within the meaning of reg 16 only arises for consideration with respect to reg 16(3) and that the Respondent thus has the onus of proving such consent, I do not accept that this is correct.

10. The Applicant bears the legal burden of proving each of the five elements set out in reg 16(1A). It is only by establishing each and every one of those elements that a removal or retention is ‘wrongful’, thus enlivening the jurisdiction to make a return Order under reg 16(1).

11. Factual issues concerning consent, for example, may well be relevant to whether or not removal to or retention in Australia breaches a person’s rights of custody and indeed, factual issues raised under the generic description of ‘consent’ may impact upon the outcome of the factual enquiry involved in the determination of habitual residence.

12. In Regino & Regino (1995) FLC 92-587, a case referred to in the written submissions, Lindenmayer J concluded that the husband in that case had consented and actively assisted in the wife taking the child from the United States of America to Australia in the knowledge and acceptance of her intention to remain permanently in Australia and recorded what he considered to be a correct concession by the Central Authority’s Counsel that, in those circumstances, the removal of the child was not a wrongful removal within the meaning of the Regulations. I note that the qualifications expressed by his Honour on the effect of the Regulations in terms of the Central Authority having the responsibility, rather than the Court, of determining the relevant elements must fall away in light of many subsequent decisions, including LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”), which makes it plain that it is for the Court to determine whether or not the relevant elements are made out.

13. To the extent that her Honour O’Reilly J in Director-General, Department of Child Safety & S (2005) FLC 93-249 (another case referred to in the written submissions) expresses conclusions in support of what I perceive to be the ultimate contention advanced by the Applicant in its written submissions on this issue, I respectfully disagree. At [31] of her decision, her Honour noted:

    31. Consent is not referred to in art 3 (reg 16(1A)), and thus is not one of the elements or formalities of a Hague Convention case upon which the Central Authority carries the onus.

    32. Thus, it is irrelevant, and ought not be pleaded or the subject of evidence in any Central Authority’s case under art 3 (reg 16(1A)) that a removal was with or without consent. It is up to a respondent to plead and adduce evidence on that issue. It would then be a matter for the Central Authority, if it wished, to adduce evidence in response in respect of that issue.

14. Further, at [35], her Honour noted:

    …Thus, if it be established that any removal or retention was contrary to or interfered with existing rights of custody (as defined in art 5) the removal or retention will be characterised as wrongful. Plainly enough, there would not be wrongfulness if the party removing or retaining the child had sought and obtained in the place of habitual residence an order to relocate with the child. This is because, if such an order be made, the rights of custody would be altered according to the content of the order so that, provided the removal or retention conformed with the order, there would be no breach.

15. Whilst I accept that ‘consent’ is not specifically referred to reg 16(1A), the scope of operation of the factual issues concerning ‘consent’ in a given case can obviously have a direct impact upon whether or not a removal or retention is wrongful within the meaning of reg 16(1A). Plainly enough, there would be at least an evidential burden on a respondent to raise issues concerning ‘consent’ if that issue was relevant but had not been raised on the application; however, once that issue had been raised in response to the application, the onus would remain upon the applicant to prove the ingredients in reg 16(1A), and in establishing those elements, to deal with any consequently arising factual issues regarding consent.

16. In some, or indeed, many, cases, the fact that a parent has consented to a departure from a country will not, in terms of the content or scope of the consent given, have any effect upon any of the ingredients or elements of reg 16(1A). For example, a consent to undertake a temporary holiday or for travel for a prescribed period may have no impact whatsoever. Nevertheless, reliance upon such kinds of consent may invoke the discretionary consideration in reg 16(3), accepting that it is the respondent who carries the onus in respect of each of the grounds of objection therein identified, including consent.

17. It would be illogical and, in my view, wrong, to describe the actions of a parent who removes a child with the consent of the other parent to be, ‘wrongful’. Depending upon the circumstances of a particular case, the facts raised by a respondent to an application of this kind may, if accepted by a Court, lead inevitably to the conclusion that one of the essential elements in reg 16(1A) is not established and thus that the removal was not wrongful. In this context, it is to be noted that in LK, the High Court analysed in some detail the question of habitual residence. Whilst that analysis could not be said to wholly depend upon the question of ‘consent’, it is equally plain that the fact that the father in that case had provided consent in the terms referred to, and that the mother had acted upon such consent, was relevant to the determination of the issue of habitual residence, an essential ingredient in reg 16(1A) before any questions of discretion arising from reg 16(3) has even arisen.

18. In the passage of the judgment of O’Reilly J to which I have referred, her Honour refers to, “…wrongfulness…” not being established if a party obtains a court Order in the country of habitual residence authorising a removal or retention. ‘Consent’ may also produce that result, depending upon its scope and content in a given case.

19. Regulation 16(1) expresses the juridical source of power for a return Order whilst reg 16(3) identifies a discretion on the exercise of such power.

20. As the Applicant bears the legal burden of establishing each of the elements in reg 16(1A) to enliven the juridical power of the Court to make a return Order, in a particular case the nature, scope and content of ‘consent’ may need to be determined as part of the Court’s determination of whether or not each of the elements is established.

21. In a given case, the nature, scope and content of the ‘consent’ as determined by the Court may not impact upon the existence of each of the reg 16(1A) elements. However, it may nevertheless enliven the discretion in reg 16(3) and in that context, a respondent bears the legal burden of establishing any of the grounds to enliven the discretion.

22. Turning to the specifics of this case, as already noted, there is no issue that the subject application for a return Order for each child has been made within one year after each child’s removal or retention respectively. Correctly in my view, the Applicant contends that in respect of N, the issue is wrongful retention, rather than removal, given that, as I have found, the Father consented to her initial departure but only in the context of a temporary holiday and not a permanent relocation. However, with respect to K, the issue is instead wrongful removal for the reasons already outlined above.

23. It is not in issue, and I find, that both children are under the age of 16 years. Nor is it in issue, and I find, that both children habitually resided in a Convention country, namely New Zealand, immediately prior to their respective removal to or retention in Australia (retention in the case of N and removal in the case of K).

24. In support of the application is the affidavit of Mr Inger Mai Blackford, a barrister and solicitor of the High Court of New Zealand who is entitled to practise as a barrister in that jurisdiction and who has relevant family law experience. Mr Blackford provides expert evidence concerning the laws of New Zealand and specifically addresses the Father’s rights of custody and the Respondent’s breach of those rights in these circumstances.

25. The evidence of Mr Blackford is not challenged on this application.

26. For the reasons identified by Mr Blackford in his affidavit, I am satisfied that at all material times, the Father had ‘rights of custody’ within the meaning of New Zealand law and that those rights included, under the relevant provisions of the Care of Children Act 2004 (NZ), the right of the Father to determine, jointly with the Respondent, the place of residence of each of N and K.

27. I accept Mr Blackford’s evidence that the Father became a guardian under New Zealand law with respect to N upon his particulars being registered on N’s birth certificate as her father. I am satisfied that the Father is a guardian under New Zealand law of K because the Respondent and the Father were living together at the time K was conceived, throughout the pregnancy and until some months after she was born. The Father is also registered on K’s birth certificate as her father.

28. I accept the evidence of the Father that he was exercising joint care and custody under New Zealand law of both children up until the time of retention, in N’s case, and removal, in the case of K. I am satisfied that the Father has the right to determine the place of residence of each child, and that that is a right of custody under New Zealand law which has been breached within the meaning of the Regulations.[2]

    [2] Director-General, Department of Community Services v Crowe (1996) FLC 92-717, a case involving the retention of a child in Australia from New Zealand.

29. Regulation 4 expresses the meaning of ‘rights of custody’ and provides in reg 4(2) that rights of custody, “…include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.” I am satisfied that the Father possessed the right to determine the place of residence of each of K and N at all material times and that the Respondent’s unilateral actions in retaining N in Australia with the expressed intention that the move was to be permanent and her removal of K in the circumstances identified above constituted a breach of the Father’s rights of custody and that, but for such breach, the Father would have exercised and continued to exercise his rights of custody in relation to the two children.

30. In short, I am satisfied that each of the elements under reg 16(1A) are made out.

31. The only discretionary ground sought to be advanced by the Respondent is that of consent or perhaps acquiescence within the meaning of reg 16(3).

32. I have already made findings with respect to the issue of consent. I reiterate that I do not accept the Respondent’s evidence on this issue, and I am therefore not satisfied that she establishes such a ground under reg 16(3) so as to enliven the discretion in the Regulations to refuse to make a return Order.

33. As the numerous authorities identified in pages 40 to 44 (inclusive) of the Applicant’s written submissions indicate, there have been a number of varying judicial formulations of what amounts to ‘acquiescence’ under the Convention and the test to be applied where acquiescence is sought to be raised.

34. Undoubtedly, it is the Respondent who bears the onus of establishing that the relevant condition exists, in this case, acquiescence.[3]

    [3] See Director-General of Family and Community Services (NSW)v Davis (1990) 14 Fam LR 381, 384 (Nygh J); Graziano v Daniels (1991) 14 Fam LR 697, 703 (Baker, Nygh and Gun JJ); and DP v Commonwealth Central Authority (2001) 206 CLR 401 at [39].

35. A useful review of the authorities on acquiescence was undertaken by Lindenmayer J in Director-General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785 at [3.34]-[3.49]. Acquiescence must be clear and unequivocal, as authorities such as Department of Health and Community Services v Casse (1995) FLC 92-629 (“Casse”) and Central Authority v Perry (1995) 20 Fam LR 380 recognise, while Casse also refers to the difficulty of holding acquiescence to have occurred where there is a state of confusion and turmoil about a child’s living arrangements.

1. In essence, acquiescence requires informed acceptance by the aggrieved party of the conduct which constitutes infringement of his or her rights of custody and can be signified by express words or conduct on his or her part, which the other party believed to be acquiescence, or by silence or inaction where different conduct might have been expected.

2. I am not satisfied that any words or conduct of the Father in this case can amount to acquiescence. There is no evidence which points to informed acceptance by him of the conduct which led to the infringement of his rights or of silence or inaction where different conduct may have been expected.

3. In short, there was no active or passive conduct on behalf of the Father from which it could be inferred by this Court that the Father acquiesced in the state of affairs which existed.

4. The Respondent has thus not discharged the onus of proof which she bears in establishing a ground of exception within the meaning of reg 16(3).

5. In those circumstances, I am satisfied that a return Order for the children is required to be made under the Regulations, and for these reasons I make Orders in terms of the Orders set out at the commencement of these reasons.

6. I note that in the hearing, the Applicant confirmed that if the Respondent did not, or could not, because of her pregnancy, return with the children, the Applicant had already made arrangements with the Father for the Father to travel to Australia to collect the children and return them to New Zealand.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 26 September 2012.

Associate: 

Date:  26 September 2012