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

[2013] FamCA 352

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & TOREITI [2013] FamCA 352

FAMILY LAW – CHILD ABDUCTION – Where the child was habitually resident in New Zealand – Where the child has been wrongfully removed from New Zealand by the Mother – Where the Father had consented or acquiesced to the child remaining in Australia – Where proceedings have been on foot in New Zealand since 2010 regarding the parenting arrangements of the subject child and her siblings – Whether the Court should exercise its residual discretion in making a return order – Where the welfare of the child is properly to be taken into consideration in exercising the discretion – Where it is appropriate for the outstanding issues concerning parenting and care arrangements to be resolved in the courts of New Zealand

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

De L v Director-General New South Wales Department of Community Services (1996) 187 CLR 640
Richards v Director-General, Department of Child Safety [2007] FamCA 65
W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211

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

RESPONDENT: Ms Toreiti (aka Ms Murray)

FILE NUMBER: BRC 1577 of 2013

DATE DELIVERED: 22 May 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 13 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Selfridge
SOLICITOR FOR THE APPLICANT:	Crown Law

FOR THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The female child, E born … May 2000, be returned to the country of New Zealand and for the purposes of giving effect to this Order:

   (a)the said child leave the Commonwealth of Australia on or before 22 June 2013;

   (b)pending the child returning to New Zealand, the respondent Mother, Ms Toreiti (aka Ms Murray), continue to be restrained from removing or attempting to remove or causing or permitting the removal of the child, from the Commonwealth of Australia;

   (c)pending the return of the child to New Zealand, the respondent Mother continue to be restrained from changing the residence of the child from the premises where she and the child are currently residing namely, … B Street, Suburb C, QLD 4…;

   (d)subject to sub-paragraph (e) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent Mother, Ms Toreiti (aka Ms Murray) born …, and the female child, E born … May 2000, on the All Ports Watch Alert System at all international departure points in Australia;

   (e)the female child, E born … May 2000, and the respondent Mother, Ms Toreiti (aka Ms Murray) born …, be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Communities, Child Safety & Disability Services advising of the travel arrangements made for the said child to return to New Zealand, from 12.00 am on the date nominated for the said travel in the letter;

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

   (g)to facilitate the return of the child to New Zealand, an officer of the Department of Communities, Child Safety & Disability Services be at liberty to release all current passports relating to the child for the purposes of the child's return to New Zealand; and release the respondent Mother’s passport to her or her nominee upon request;

   (h)the respondent Mother pay all the necessary expenses associated with returning the child to New Zealand including the cost of airfares and departure taxes (if any) for the child to travel from Brisbane Airport to New Zealand and in the event the respondent Mother fails or refuses to pay these expenses; the respondent Mother pay to the Applicant the necessary expenses incurred by or on behalf of the Applicant and Mr Vakaoti, in returning the child to New Zealand, within two business days of the Applicant making a written demand for reimbursement of the said expenses;

   (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 child in accordance with this Order.

2. There be liberty to apply.

3. All other Applications be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities, Child Safety and Disability Services & Toreiti 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 1577 of 2013

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

Applicant

And

Ms Toreiti (aka Ms Murray)

Respondent

REASONS FOR JUDGMENT

1. By application filed on 6 March 2013 the Director-General, Department of Communities, Child Safety and Disability Services as the State Central Authority (“the Central Authority”) under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) sought, inter alia, an order that E, (“the child”), a female born in May 2000 be returned to the country of New Zealand, a convention country within the meaning of the Regulations.

2. The Regulations give effect to Australia’s obligations as a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).

3. The requesting applicant under the Convention is Mr Vakaoti, the father of the child (“the Father”), and a resident and national of New Zealand.

4. The respondent to the application is Ms Toreiti, also known as Ms Murray, who is the child’s mother (“the Mother”) and is also a New Zealand national.

5. On the first return date of the application on 25 March 2013 the Mother, who has appeared on her own behalf throughout the proceedings, indicated that a return order would be opposed on three grounds. First, the Mother contended that the Father had consented to or acquiesced in the child remaining in Australia. Second, the Mother contended that the child objected to being returned to New Zealand. Third, the Mother contended that there would be a grave risk that the return of the child to New Zealand would expose her to physical or psychological harm or otherwise place her in an intolerable situation.

6. Because the Mother raised objection as a ground of defence to the making of a return order and having regard to the child’s age, the interim orders made on 25 March 2013 (as amended on 27 March 2013) included an order under regulation 26 of the Regulations directing a family consultant to report to the Court in the terms specified in the order addressing the question of the child’s objection.

7. Family Consultant, Mr D, interviewed the child for the purpose of that report on 3 May 2013 and a report dated 6 May 2013 was provided to the Court. Otherwise, the interim orders referred to provided for the filing of material and for there to be a final trial of the application. Material has been filed and the final hearing of the application proceeded on 13 May 2013.

Background

1. The Mother’s eldest daughter, F, from an earlier relationship is now about 16 years of age.

2. The Mother and the Father both of whom were born in New Zealand met there in about 1999. It appears their relationship was volatile and they differ as to the periods of their cohabitation in New Zealand.

3. On the Father’s version, the parents commenced cohabitation when the Mother became pregnant with the child in 1999. On his version, they continued living in a defacto relationship between 1999 and final separation in late 2005/early 2006.

4. On the Mother’s version, the parents did not commence cohabitation until 2001 and were not living together at the time of the child’s birth.

5. I note that on the Mother’s version in her affidavit as to cohabitation not commencing until 2001, subsequent to the child’s birth, there would be a basis for concluding that pursuant to s 17(3) of the Care of Children Act 2004 (NZ) the Mother would be the sole guardian of the child on the basis that she was neither married to (or in a civil union with) the Father during the period commencing with the child’s conception and during the Mother’s pregnancy with the child, nor was she living with the Father as his defacto partner at the time the child was born.

6. Obviously, on the affidavit evidence advanced by the Father the parents commenced cohabitation, and continued to cohabit, over the period of the Mother’s pregnancy with and birth of the child.

7. Neither party sought to cross-examine any other party or witness to resolve any disputed issues of fact. In the result, the Mother confirmed at the outset of the hearing before me that she acknowledged the Father’s relevant rights, which will be discussed further shortly. That is, the Mother did not contest that the child’s removal form New Zealand on 12 April 2012 was, as the Applicant contended, in breach of the Father’s rights of custody under New Zealand law.

8. The parents are also the parents of G, a female child born in January 2002 who is now 11 years of age and their son, H, born in December 2004 who is now eight years of age. Each parent has had a child via a relationship subsequent to this parental relationship. The Father and his current partner Ms J have a son, K, who is now about two years of age and the Mother also has a two year old son, L, with her present partner, Mr M.

9. Thus while the subject of this application is only the child E, it is the case that she has an older half-sibling, F, and two younger half-siblings, K and L, as well as her own younger sister and brother, G and H.

10. Following the parents’ separation in New Zealand in about 2006, it would seem the Mother later commenced court proceedings in New Zealand in 2010. Both parents agree that they have been involved in court proceedings in New Zealand since 2010.

11. The material before me included an interim judgment of Judge Clarkson in the Family Court at Waitakere in New Zealand delivered on 14 November 2011. In summary, the judgment of the New Zealand court was to place E, G and H in the day to day care of the Mother with them spending alternate weekends with the Father from 9:00am Saturday to 6:00pm Sunday subject to a condition attaching that the child was not to be left in the unsupervised care of the Father’s partner, Ms J. Further interim orders were made for Christmas care arrangements.

12. The parents give conflicting accounts as to what occurred in fact in terms of care of the children over the period from their separation in 2006 until the relevant events giving rise to the present application in April 2012. For example, the Father indicates that the Mother was in the habit from time to time of making excuses as to why time between he and the children could not occur whilst for her part the Mother advances the proposition that, whilst the Father was “proactive as a father from 2006–2008”, from 2008 he modified his engagement with the children consequent upon him developing a new relationship with Ms J. The Mother asserts to the effect that months would pass without the Father seeing the children although it seems that H remained living with the Father until he was placed in the Mother’s day to day care as a consequence of the interim order in 2011 referred to.

13. There is no forensic need for me to determine where the truth lies with respect to the parent’s competing versions concerning care arrangements over the years. Suffice to note that this has been a focus of proceedings in the courts in New Zealand over the period since 2010 when the Mother initiated such proceedings.

14. On 4 April 2012 the Mother and the child arrived in Australia. At that stage it seems the Mother planned that G and her older sister F would travel to Australia after spending the school holiday period in New Zealand with their aunt and grandmother. However, G was stopped at the airport.

15. In the result, the Father applied to and obtained orders from the Family Court in New Zealand preventing the removal of the children from New Zealand but it seems that this order was obtained only after the child had already been removed from New Zealand to Australia.

16. On 27 April 2012 the Father attended when he received advice that G was being readied for travel to Australia. He collected G on this date and has subsequently obtained orders from the Family Court of New Zealand providing, he says, for each of G and H to be in his day to day care.

17. The parties agree that the parents met in New Zealand in early May 2012 to discuss care arrangements for all three children, E, G and H. Their versions of that discussion and its outcome are opposed and this aspect will be dealt with separately below.

18. The position is that since April 2012 the child has remained in the Mother’s care in Australia. G and H remain in the Father’s primary care in New Zealand. No arrangements or agreements are in place with respect to either parent communicating or spending time with the child or children not in that parent’s primary care and likewise there are no arrangements for the siblings to see each other.

Regulation 16(1) and (1A)

1. At the outset of the trial before me the Mother acknowledged that the Central Authority had established each of the elements necessary to be established for the making of a return order and that the Mother sought to establish the grounds of defence earlier referred to. That is, the Mother did not dispute that the child’s removal to Australia on 4 April 2012 was wrongful within the meaning of the Regulations. In summary, the Mother acknowledged that the child habitually resided in New Zealand immediately before her removal to Australia; that the Father had rights of custody in relation to the child under the law of New Zealand immediately before her removal; that her removal to Australia is in breach of those rights of custody; and that at the time of removal the Father was actually exercising rights of custody or would have exercised those rights if the child had not been removed or retained.

2. In essence, the Mother’s opposition to the making of a return order was comprised in the contention that the Father had consented or acquiesced to the child remaining in Australia as a consequence of the discussion and meeting that was held in May 2012 which will shortly be discussed. Further, the Mother maintained that the child objected to returning to New Zealand (within the meaning the Regulations) and that she sought to maintain a defence based upon the grave risk exception.

3. However, at an early stage of the trial the Mother confirmed that if a return order was made for the child to return to New Zealand the Mother would also return with the child to New Zealand. The Mother indicated that she would need to give some notice to her current employer but that it was her wish and desire to return with the child to New Zealand if a return order was made.

4. It seems to me that the Mother’s acknowledgment about the wrongfulness of the removal renders it unnecessary for any further consideration to be given to questions of guardianship or rights of custody under New Zealand law. As noted, the Mother freely and frankly acknowledged that the child’s removal to Australia on 4 April 2012 without the knowledge or consent of the Father was wrongful within the meaning of the Regulations.

5. I therefore find that the Applicant has established each of the requirements for the making of a return order and what remains is determination of the exceptions advanced by the Mother.

Consent or Acquiescence

1. Attached to the Mother’s Form 2A answer and cross-application filed 12 April 2013 is an affidavit of the Father filed in the Family Court at Waitakere, New Zealand sworn on 3 December 2012.

2. The Mother relies upon the content of that affidavit for the proposition that as a consequence of a meeting held by the parents in New Zealand in May 2012 the Father then consented to the child remaining in Australia with the Mother or acquiesced in that position.

3. Relevantly, paragraphs 6 to 8 of that affidavit, with reference to the subject meeting, contain the following:

   6.      We all sat down together inside with the children.  We spoke about the care arrangements.  [The child] was not present.  At that time, I did agree that [the child] could remain in Australia for the time being as I could not speak with her to ascertain her view and, [the Mother] told me that she was not bringing her back to New Zealand.

   7.     It was also agreed that the two younger children would remain in our care.  We spoke about ongoing contact.  Prior to leaving, [the Mother] told me that she wouldn’t be able to afford mid-year visits during school holidays because she had just moved and had no money.  She did however tell me that she and [the child] would come over to visit in the December holidays.

   8.     Both [Ms J] and I thought that this meeting was positive.  It ended with an agreement that we were all happy with, or so I thought.  The children had been present throughout the discussions and had contributed to the conversation when asked.  It is unfortunate that since this time, the matter has not advanced further.

4. Further, paragraph 16 of that same affidavit provides:

   16.    In terms of the arrangements for [the child], I accept that she is not wanting to return to New Zealand.  I do however want to speak with her and to ensure that ongoing contact between ourselves is able to be maintained.  I believe that it is important for her to continue to have a relationship with [G], [H] and her half siblings.

5. Whilst Counsel for the Applicant argued that the Father’s agreement to the child remaining with the Mother in Australia as referred to in the meeting was “forced” or that he had “no choice” it seems to me that on this affidavit the clear inference is that the Father agreed to the child remaining in the care of the Mother in circumstances where on the face of that affidavit he knew that was to occur in Australia whilst the two younger children, G and H, would remain in his care.

6. On the Father’s evidence in support of the application in these proceedings, he became aware that the Mother applied in the New Zealand proceedings for permission to relocate all three children to Australia. The clear inference then is that the Father only activated these Convention proceedings when he became aware that the Mother was actively pursuing, contrary to the agreement he thought he had with the Mother, arrangements for G and H also to be in the Mother’s care in Australia.

7. It is certainly true that the Father’s evidence in these Convention proceedings in speaking of this May meeting and agreement puts a very different complexion on what was agreed. In summary, the Father’s depositions in these proceedings are to the effect that he understood that whilst it was agreed the child would be cared for by the Mother that would occur in New Zealand. However, those versions are irreconcilable, it seems to me, with the version contained in the Father’s December affidavit referred to.

8. It has been held that once there has been consent to or acquiescence in an otherwise wrongful removal or retention the effect of the consent or acquiescence cannot be undone.[1] It is well settled that acquiescence must be clear and unequivocal; it cannot be held to have occurred where there is a state of confusion and turmoil about the child’s living arrangements.[2]

   [1] Re A (Abduction: Custody Rights) [1992] Fam 106; see also Director-General, Department of Families, Youth and Community Care v Thorpe (1997) 141 FLR 44 at [3.46] – [3.48] per Lindenmayer J.

   [2] Thorpe’s case (supra); Department of Health and Community Services v Casse (1995) 19 Fam LR 474; Central Authority v Perry (1995) 20 Fam LR 380.

1. Whilst the onus to demonstrate acquiescence rests on the abducting parent, that onus is discharged where the words or actions of the other parent clearly lead the abducting parent to believe that a summary return of the child would not be sought.[3]

   [3] Commissioner of Police (WA) v Dormann (1997) FLC 92-766.

2. In W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 inaction over a period of ten months following the communication of the decision by the mother not to return with the children was held to be acquiescence.

3. I find that it is more likely than not that as at the May 2012 meeting referred to there was acquiescence on the part of the Father in the state of affairs where the child was living with the Mother in Australia and the Father was aware as he refers to in his December 2012 affidavit that the Mother was not intending to return to New Zealand and that the only proposal for the child to travel to New Zealand was for holiday visits. I find that on the Father’s version of the May 2012 meeting as set out in his affidavit and the paragraphs extracted above, the Mother was lead to believe that a summary order for return would not be sought.

Objection to return/grave risk

1. As already noted, at the outset of the trial of the application the Mother confirmed that if an order for the child to return to New Zealand was made then the Mother would also return. I find that this disposes of any foundations for either the exception based upon objection or the exception of grave risk to the child.

2. The report of Family Consultant, Mr D makes it plain that the child’s objection is formulated by reference to the prospect that she would be living in New Zealand with the Father. Mr D records in this report at paragraph 9:

   9.      In regards to why she [the child] thought I had asked to see, (sic) [the child] said, “So I, like, so I don’t have to (sic) back to New Zealand.” Asked why she would need to go back to New Zealand, she said, “Because my dad wants me to but I want to stay with mum.” …

3. In the same paragraph of that report, when asked by Mr D what the child thought would happen if she had to go back to New Zealand, the child replied, “I think I’d just have to go live with my dad.”

4. However, if the Mother returns as she says she will this will not be the case. I find that the objection defence cannot be made out in these circumstances. It may also be observed that it is clear from the expert’s report that the child is merging the concepts of objection to returning to her country of origin with her living arrangements. Mr D records in his report at paragraphs 16 and 18:

   16.    I have formed the view that [the child] does object to going back to New Zealand. I have considered the nature and strength of [the child’s] objection, and I am inclined to think it is an authentic objection in that it is based on what she believes would be the outcome of her returning to New Zealand. My assessment has indicated that [the child] has, in her mind, formed a strong primary association between returning to New Zealand to having to live with her father. This assumption (I think not an irrational one for a child her age) gives rise to a ‘secondary’ assumption which is that if she lives with her father in New Zealand she will be exposed to the father’s partner. [The child’s] comments to me about the father’s partner suggest she may have had some negative experiences at the father’s house and therefore her apprehension about returning might be rational.

   …

   18.    …I think as her comments in interview indicate, [the child] believes that returning to New Zealand and living with her father is ‘one and the same’. In my opinion, [the child] did not actually articulate or express to me a strong objection to returning to New Zealand (as opposed to returning to the father).

   (emphasis added)

5. Once it is clear, having regard to the existing New Zealand orders for parenting arrangements and the fact that the Mother will return to New Zealand if a return order is made, then this ground of defence or exception cannot be sustained.  

6. In terms of the grave risk exception, the same observations can be made. Even if the Mother were not returning to New Zealand I do not consider that the grave risk exception can be made out on all the evidence.

7. By the Mother’s own case, the two younger children have been living with the Father for some time. She agreed in the course of submissions at trial that she had sought orders in the New Zealand proceedings for the two younger children also to be able to relocate with her to Australia but the fact is that historically there had been orders for the younger children to spend significant time with the Father. There is no suggestion that the authorities in New Zealand could not address any relevant needs of any of the children.

8. On the evidence for this trial the Mother seemed to conflate the stability of circumstances the child had achieved with her education and the need as she perceived it for that to be not disrupted by returning to New Zealand with the elements necessary to make out an objection on the grave risk ground.

9. I find that the grave risk exception is not made out and is unsustainable given the Mother’s unequivocal position that she will return to New Zealand if a return order is made.

Residual discretion

1. Notwithstanding the finding of acquiescence, regulation 16(5) expresses the residual discretion of the Court to make a return order even though a ground under sub-regulation (3) is established by the person opposing return.

2. That is, even though I am satisfied that the Mother establishes acquiescence the Court retains a residual discretion under the Regulations to make a return order.

3. Regulation 16(3) likewise confers a discretion on the Court to order the return of the child notwithstanding that an exception has been established.[4] In De L v Director-General New South Wales Department of Community Services (supra) the High Court held that the discretion is unconfined except in so far as the subject matter and the scope and purpose of the Regulations enable it to be said that a particular consideration is extraneous.

   [4] De L v Director-General New South Wales Department of Community Services (1996) 187 CLR 640; DP v Commonwealth Central Authority (2001) 206 CLR 401 and In the marriage of Agee (2000) 27 Fam LR 140 at 159.

4. The subject matter of the Regulations is such that the welfare of the child is properly to be taken into consideration in exercising the determination of the discretion.[5]

   [5]Richards v Director-General, Department of Child Safety [2007] FamCA 65.

5. In my judgment there are compelling reasons to exercise the residual discretion in favour of the making of a return order.

6. These parents have been litigating in the courts of New Zealand since 2010 in relation to the parenting arrangements for their children. There are current proceedings on foot. The children are independently represented in those proceedings by the appointment of a lawyer under the New Zealand legislation to represent their interests in the proceedings.

7. There have been expert reports provided in the course of those proceedings and indeed it seems that a relevantly recent report has been prepared.

8. On the evidence, but for the Mother being in Australia, there would likely have been by now either a trial of those proceedings or at the least consideration by the New Zealand courts of the interim arrangements to be made.

9. Thus it is the case, as is submitted on behalf of the Applicant, that the Mother has consistently until now chosen the jurisdiction of the courts of New Zealand to resolve disputes between the parents as to the parenting arrangements.

10. There is also the unchallenged evidence of the Father that he has obtained further orders from the courts of New Zealand about the younger children not being removed from New Zealand pending further order of the courts of New Zealand. The Mother did not dispute that she had amended her application in the proceedings in New Zealand to seek orders permitting her to relocate the two younger children G and H with her to Australia. That application is pending.

11. Perhaps most fundamentally of all, at the present stage there is no resolution as to the time and communication arrangements that ought be made between the parents and their children and as between the children and their respective siblings including half-siblings.

12. It seems to me that the making of a return order in circumstances where the Mother will return to New Zealand if such an order is made enables the parents and the children to achieve most readily some certainty about future arrangements by accessing further the courts in New Zealand to resolve outstanding parenting and care issues.

13. It is clearly in the interests of the subject child as well as all of her siblings for there to be some finality about their arrangements.

14. In short, in circumstances where the courts of New Zealand have been engaged since 2010 and there are pending proceedings initiated by the Mother it is appropriate that those courts are the forum in which outstanding issues concerning parenting and care arrangements ought be resolved.

15. The Applicant confirmed in submissions that no objection would be made to a return order being made no earlier than 22 June 2013 being the first day of gazetted school holidays for the school at which the child presently attends, to enable the child to complete her current school term.

16. That would also allow the Mother sufficient opportunity, as she sought, to give notice to her current employer and to make appropriate arrangements for her own return to New Zealand. It will also provide the Mother the opportunity to re-engage with her New Zealand lawyer and do whatever is necessary to make arrangements to have things put on track for further and hopefully final determinations to be made in the New Zealand courts.

17. For these reasons, I exercise the discretion to make a return order to provide for the return of the child as sought on or before 22 June 2013.

18. I therefore make this and the other necessary orders as set out at the commencement of these reasons.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 22 May 2013.

Associate: 

Date:  22 May 2013