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

[2016] FamCA 781

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY & DISABILITY SERVICES & SALESA [2016] FamCA 781

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Cross-examination – where mother sought to cross-examine various witnesses – where application for cross-examination dismissed – where mother has not complied with Family Law Rules 2004 (Cth) rule 15.14 – where cross-examination would result in an adjournment of the trial.

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Return Order – where child is to return to New Zealand – Habitual residence – whether the father departed Australia for New Zealand on a temporary or permanent basis – where child is habitually resident in New Zealand – Rights of custody – where under New Zealand law the father and the mother were a guardian of the child – where mother has identical rights to father – where father had a right of custody – Retention a breach of fathers’ rights – where any interference with ability to exercise right of custody is a breach of that right – where there was a wrongful removal – where court is obliged to make an order for return.

FAMILY LAW – DISCRETION – Grave risk of harm – enquiry involves some consideration as to the interests of the child – where mother alleges psychological harm upon being exposed to domestic violence – where mother alleges psychological or physical harm from being disciplined by the father – where mother alleges neglect of the child by father – where evidence is neither clear or compelling – where discretion to not order return of child is not enlivened – Child’s objection to return – where Hague Report prepared – where there is no evidence the child had a strong objection to returning – where the objection does not have a strength showing beyond mere expression

Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 2, 4, 15, 16, 26
Hague Convention of 22 October 1980 on the Civil Aspects of International Child Abduction, art 3
Family Law Rules 2004 (Cth) r 15.14

Commissioner of Police (State Central Authority) & Bryson [2016] FamCA 72
Cooper v Casey (1995) 18 Fam LR 433
Director-General Department of Child Safety & Stratford (2005) FLC 19-249
Director-General NSW Department of Community Services v JLM (2001) 28 Fam LR 243
DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401
Gsponer v Director-General, Department of Community Services (Vic) (1989) FLC 92-001
In the Marriage of McCall (1994) 18 Fam LR 307
LK v Director-General, Department of Community Services (2009) 237 CLR 582
MW v Director-General Department of Community Services (2008) 82 ALJR 629
P v Secretary of Justice [2001] NZLR 40
State Central Authority v Weston [2010] FamCA 599

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

RESPONDENT: Ms Salesa

FILE NUMBER: BRC 6826 of 2016

DATE DELIVERED: 16 September 2016

PLACE DELIVERED: Cairns

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 6 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bunning

SOLICITORS FOR THE APPLICANT: McInnes Wilson Lawyers

THE RESPONDENT: In person

Orders

1. The child L (the male child) born … 2007 be returned to New Zealand; and for the purposes of giving effect to this Order:

(a)The said child leave the Commonwealth of Australia on or before 23 September 2016;

(b)The said child arrive in New Zealand on or before 24 September 2016.

(c)Pending the said child returning to the New Zealand, the Respondent mother Ms Salesa born … 1983 continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said child from the Commonwealth of Australia.

(d)Pending the said child’s return the Respondent mother Ms Salesa born … 1983 be restrained and an injunction issue restraining her from changing the said child’s usual day to day residence from the premises where she and the said child is currently residing namely, Suburb X in state of Queensland.

(e)That subject to sub-order (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 Salesa born … 1983, and the child L born … 2007 on the Family Law Watch list at all international departure points in Australia.

(f)That the child L born … 2007, and the Respondent mother Ms Salesa born … 1983 be removed from the Family Law Watch list 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 child to return to New Zealand from 12.00am on the date nominated for the said travel in the letter.

(g)That the Marshall 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)That to facilitate the return of the said child 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 the child for the purposes of the said child's return to New Zealand; and release the Respondent mother's passport to her or her nominee upon request.

(i)That liberty to apply be granted to the applicant to seek any further orders necessary to allow him or officers of the Department of Communities, Child Safety and Disability Services to make such arrangements as are necessary to facilitate and ensure the return of the said child 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.

1. That 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 & Salesa 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 TOWNSVILLE

FILE NUMBER: BRC6826/16

The Director-General, Department of Communities, Child Safety & Disability Services

Applicant

And

Ms Salesa

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By Application Initiating Proceedings filed 15 July 2016, the Director General, Department of Communities, Child Safety and Disability Services (“the Department”) seeks orders requiring the return of L, born in 2007 and hence presently nine years of age (“the child”) from Australia to New Zealand.  Ms Salesa (“the mother”) opposes that order on a number of bases, as outlined in her Answer filed 2 August 2016.

2. On 6 September 2016 I conducted the hearing of the Department’s application.  At the outset, the mother sought, for the first time, to cross-examine the various witnesses whose affidavits were relied upon by the Department.  I dismissed that application for reasons to be delivered in due course.

3. Save that at the conclusion of the hearing I afforded the parties an opportunity to put in any further written submissions restricted to a particular issue, on 6 September 2016 I reserved my decision in relation to the Department’s application.

4. These are my reasons for refusing the mother leave to cross-examine witnesses, and my decision and reasons therefor in relation to the Department’s application.

BACKGROUND FACTS

1. The mother is a Samoan national born in New Zealand in 1983, and hence presently 33 years of age.  Mr P (“the father”) is also a Samoan national, born in New Zealand in 1986, and hence presently 30 years of age.

2. The mother and father commenced their relationship in 2005 and began living together in the following year as a de facto couple.  The child was born to that relationship in 2007.

3. There is some dispute as to when the parties finally separated, and where they were living at that time.  For her part the mother says that the relationship terminated in March 2011 when both parties were living in New Zealand.  She says that she then travelled to Australia in October 2011, and notwithstanding that they were then separated on her version of events, in December 2011 the father and the child travelled to Australia.  The parties then cohabited for a time in Brisbane, before the father returned without the child to New Zealand, but later then returned again to Australia.  The mother accepts that in February 2013 the father and child then returned to New Zealand.

4. For his part the father says that the parties were still in a relationship when they went to live in Australia in 2011, although the relationship was experiencing problems.  He says that separation occurred whilst the parties were living together in Brisbane in 2011.  It is unnecessary to determine which of the parties’ versions is the more accurate.  That is because it is not in dispute that in early 2013, the child and father returned to New Zealand, and that by then, not only had the parties’ relationship been terminated for in excess of a year, but the mother was in a new relationship to which she had given birth to a daughter in mid 2012.

5. The mother says that she only agreed to the father and child temporarily returning to New Zealand in February 2013; for his part the father says that the move was never intended to be temporary, and was plainly permanent.  I will consider that conflict in due course.

6. Since February 2013, the child has spent time and communicated with the mother, both in New Zealand and Australia.  The mother says that progressively the father’s communication with her became more difficult, and in consequence her communication with the child was mostly when the child was visiting his maternal grandfather, who also resided in New Zealand.

7. In April 2015 the child came to Australia for the Easter School Holidays.  He again spent time in Australia during the New Zealand school holidays in April of this year (albeit the parties agreed he would return to New Zealand for the school term).  To facilitate that holiday time, the father dropped the child at the maternal grandfather’s house on 17 April, but has not seen him since.  It is not in contest that the mother has failed to return the child to the father in accordance with their agreement, and that the child is living with her and her family, and has been attending school, in Brisbane.

8. As at the date of the hearing before me, the father had re-partnered and was cohabiting with that partner and her son, who is approximately the same age as the child. 

9. For her part the mother remains in the relationship which she formed after separation, to which relationship there are now two children.

WHY CROSS-EXAMINATION WAS NOT PERMITTED

1. Although at the commencement of the hearing, counsel for the Department advised me that neither party wished to cross-examine any witnesses, when I explained to the mother the difficulty which that may pose in the resolution of disputed matters of fact, she indicated that indeed she wished to cross-examine all witnesses whose affidavits were relied on by the Department. I stood the matter down, during which time the Department attempted to contact the two New Zealand witnesses upon which it relied, without success. Upon resumption, the Department opposed the mother having leave to cross-examine the witnesses, on the grounds that it would inevitably derail the hearing for that day, and further, that the mother had not given any prior warning of a desire to cross-examine. Counsel for the Department referred me to Rule 15.14 of the Family Law Rules (2004) (Cth), which requires a party seeking to cross-examine a deponent to give notice of that intention at least 14 days before the trial date.

2. In State Central Authority & Weston [2010] FamCA 599 Bennett J helpfully reviewed the law in relation to cross-examination in Hague Convention proceedings. After having recited the relevant passages from the High Court’s decision in MW v Director-General Department of Community Services (2008) 82 ALJR 629, at [22] her Honour continued:

   Counsel for the SCA conceded, appropriately in my view, that mention by the High Court of “leave” to cross-examine in paragraph 45 of the above extract does not constitute an authorative statement, binding on me, that cross-examination can only be permitted with leave.  She went on to submit that the circumstances of each case must be assessed including with a view to relevance and a prompt determination.  I accept that submission as correct.

3. Later at [26] her Honour agreed with the obiter comments of the Full Court in Director-General NSW Department of Community Services vJLM (2001) 28 Fam LR 243 at [14], where the Full court said:

   .. A Judge of the Family Court enjoys a wide discretion in the procedures to be adopted in such applications but that discretion is not so large as would defeat the attainment of the objectives of the convention and regulations.  Notwithstanding the speedy process and summary procedure envisaged by the regulations, in appropriate cases, cross-examination of the deponents of affidavit and the hearing of oral evidence should not only be permitted but may well be essential in the interests of justice.

4. I accept that both those statements of principle are correct, and further, that the recited comment of the Full Court in JLM was not affected by the subsequent High Court appeal judgment: DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401.

5. Here the following points tell against permitting cross-examination in the circumstances of this case:

   ·The desire to cross-examine was only first advanced at the commencement of the hearing;

   ·The mother has not complied with r 15.14;

   ·Acceding to her request would entail the adjournment of the trial, likely for some months, as I have no availability in my diary in the near term to hear the application;

   ·Such applications are intended to be dealt with expeditiously under the regulations: see regulations 15(2) and (4).

6. I am mindful that the conflict in evidence between the mother and the father does involve some significant matters, including the history of domestic violence between the parties which the mother says is relevant in assessing whether or not there is a grave risk to the child if he were returned to New Zealand.  However the inability of the court to resolve those disputed matters is likely to in fact favour the mother, as it will likely lead to the court adopting a more cautious approach, given its inability to resolve such disputes.

7. Weighing those considerations in the balance, tells strongly in favour of the mother’s request to cross-examine the Department’s witnesses being refused.

8. For these reasons I so ruled on 6 September 2016.

THE RETURN ORDER APPLICATION

Uncontroversial matters

1. Many of the matters required to be established by the Department under regulation 16 of the Family Law (Child Abduction Convention) Regulations 1986 are not in issue. Particularly it is agreed that:

   ·The Department has made an application for return order for a the child: (regulation 16(1)(a));

   ·That application was filed within one year after the child’s retention in Australia: (regulation 16(1)(b));

   ·The child is under the age of 16: (regulation 16(1A)(a)); and

   ·If the father had rights of custody in relation the child under the laws of New Zealand, then he would have exercised those rights if the child had not been retained by the mother: (regulation 16(1A)(e)(ii)). 

2. Therefore it is only necessary for me to consider the remaining controversial matters.

Habitual residence

The law

1. Regulation 16(1A) provides five matters which must all be established in order to show that a child’s removal or retention was unlawful.  One of those is that the child habitually resided in a convention country immediately before their removal to, or retention in, Australia.  The term “habitually resided” or like phrasing is not defined in either the regulations, or in the Hague Convention which the regulations are intended to give effect to.

2. However the following statements may be taken as established by the authorities:

   ·The question of habitual residence is a question of fact;[1]

   ·The question comprises two elements: the first is residence in a particular country, and the second is an intention to reside there habitually;[2]

   ·A broad factual enquiry is mandated;[3]

   ·“Such an enquiry should take into account all relevant factors, including settled purpose, the actual intended length of stay in a State, the purpose of the stay, the strength of ties to the State and to any other State (both in the past and currently), the degree of assimilation into the State, including living and schooling arrangements, and cultural, social and economic integration.”[4]

   ·Settled purpose of the parents is important but not determinative.[5]

   [1]Cooper v Casey (1995) 18 Fam LR 433.

   [2]In the Marriage of McCall (1994) 18 Fam LR 307.

   [3]LK v Director-General, Department of Community Services (2009) 237 CLR 582.

   [4]ibid at [44], citing P v Secretary of Justice [2001] NZLR 40 at [88].

   [5]ibid.

Evaluation

1. There is no dispute that in February 2013 the child left Australia to return to New Zealand with the father, after having lived here since December 2011.  It is likewise not in dispute that he has thereafter remained residing in New Zealand, although on occasion he has holidayed in Australia.  He has been attending school in New Zealand, and has a number of close family who also live there, including, as I understand it, his maternal grandfather and paternal grandmother.

2. The only real controversy between the parties is as to whether or not, when the father departed Australia for New Zealand, it was expressly on a temporary basis, or whether it was on a permanent basis.  It is unnecessary for me to determine that, because even on the assumption that it was intended to only be temporary, the fact that it thereafter continued for in excess of three years, and it was the base to which the child returned from visits to Australia, make it nigh incontestable that he is habitually resident in New Zealand.  Any agreement that it was temporary cannot trump the fact that from age six, the child has not lived in Australia. It would be frankly absurd to conclude otherwise.  Until April this year, the child has not again lived in Australia since February 2013, and although he has visited, it could not be said that the nature of his time, or his activities then undertaken, were consistent with him being habitually resident here.  

3. I am well satisfied that the child is habitually resident in New Zealand.

Father’s rights of custody

The law

1. Regulation 16(1A)(c) requires the Department to establish that the father had “rights of custody in relation to the child” under the law of New Zealand.

2. Regulation 4 provides as follows:

   4(1)For these regulations, a person, institution or other body has rights of custody in relation to a child if:

   (a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and

   (b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.

   4(2) For the purposes of subregulation (1), 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.

   4(3)     For the purposes of this regulation, rights of custody may arise:

   (a)       by operation of law; or

   (b)       by reason of a judicial or administrative decision; or

   (c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.

Evaluation

1. The evidence before me included an affidavit of a New Zealand lawyer, Ms H.  Her evidence was that under New Zealand law, the father (and indeed the mother) was a guardian of the child, and a guardian’s powers and rights included having the role of providing day to day care, and in particular, a right to determine changes to the child’s place of residence.

2. It is not to the point that the mother had identical rights to the father in that respect, because regulation 4(1)(b) specifically contemplates that a person may have a right of custody, notwithstanding that it is a joint one.

3. I am therefore persuaded that the father had a right of custody in respect of the child in New Zealand at the time of his retention.

Retention a breach of father’s rights

The law

1. Regulation 16(1A)(d) requires the Department to establish that the child’s retention in Australia was a breach of the father’s rights of custody.  There is no definition in the regulations of what comprises a breach of a person’s rights of custody.  However regulation 2(2) provides:

   The removal or retention of a child is wrongful in the circumstances mentioned in article 3 of the Convention.

2. In turn, article 3 largely mirrors the provisions of regulations 16(d) and (e).  There is therefore little assistance to be derived from regulation 2 in relation to what will comprise a breach. 

3. However in Director-General Department of Child Safety & Stratford (2005) FLC 19-249 at [35] O’Reilly J said:

   ..Rather, it seems to me that article 3 contemplates that a removal or retention will be in breach of rights of custody if, for example, it be established simply that the removal, or retention, is contrary to or interferes with rights of custody as defined in article 5.  Thus, if it be established that in removal, or retention, was contrary to or interfered with existing rights of custody (as defined in article 5) the removal, or retention, will be characterised as wrongful..

4. More recently, in Commissioner of Police (State Central Authority) & Bryson [2016] FamCA 72, Berman J followed the decision of O’Reilly J, holding that breach comprises an interference with an ability to exercise a right of custody: at [58]-[59]. I am satisfied that any interference with an ability to exercise a right of custody, even if the interference is otherwise lawful, is a breach of that right.

Evaluation

1. Initially I was troubled that the exercise by the mother of her clear right as a guardian to make a decision which changed the child’s place of residence in a way that affected his relationship with his father (which is an express power of hers under the New Zealand legislation) and which was not an unlawful decision under New Zealand law, was difficult to construe as a “breach”, because it was lawful.  However as discussed above, I accept that as a matter of law, a breach will be established if the action simply interferes with the ability of the other parent to exercise a right, and it matters not whether the breach is an otherwise lawful act or not.

2. It therefore follows that notwithstanding the otherwise lawfulness of the mother’s retention of the child in Australia, for the purposes of establishing the appropriate forum for subsequent parenting disputes, it is taken to be a breach of the father’s rights.  It follows that the mother has breached the father’s rights of custody.

Child’s removal or retention was wrongful

1. It follows that all of the matters referred to in regulation 16(1A) (a) to (e) have been established, and therefore I am satisfied that the child’s removal or retention was wrongful for the purposes of regulation 16(1)(c).  Further, since all of the other requirements of regulation 16(1) have been met, subject to the provisions of subregulation (3), I am obliged to make an order for the return of the child.  Against that background I turn to consider the matters the mother raises under subregulation (3).

Grave risk of harm

The law

1. Regulation 16(3)(b) provides that a court may refuse to make a return order if “there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

2. From the relevant authorities, the following propositions of law may be distilled:

   ·The burden of proof of showing the grave risk is upon the person opposing return;[6]

   ·The enquiry inevitably involves some consideration as to the interests of the child;[7]

   ·It is the exposure of the child to harm, rather than a finding that harm will actually occur, to which the regulation is directed;[8]

   ·The notion of grave risk of exposure to future harm is likely to require some clear and compelling evidence;[9]

   ·The physical or psychological harm in question must be of substantial or weighty kind.[10]

   [6]DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401 at [41].

   [7]ibid.

   [8]ibid at [42].

   [9]ibid at [43].

   [10]Gsponer v Director-General, Department of Community Services (Vic) (1989) FLC 92-001 at 77,159.

Evaluation

1. The mother relies upon three species of alleged harm.  The first is psychological harm consequent upon exposure to domestic violence.  The second is psychological harm, or physical harm, consequent upon physical discipline of the child by the father.  The third is said to arise from the alleged neglect of the child by the father, which although the mother did not categorise as physical or psychological, could be either.

2. The evidence in relation to the exposure to domestic violence was twofold.  The first was that the mother said in her affidavit (filed by leave at the commencement of the hearing) that during the course of the relationship between the parties, on one occasion she had tried to get up from bed, but the father had pushed her back and held her down, yelling profanities at her.  She said that this was done in the presence of the child, and that thereafter the father then began to punch her by hitting her on the legs when she tried to get away. 

3. The second matter relied upon by the mother arises from the Hague report prepared by Ms R, dated 2 September 2016.  At paragraph 10 of that report the child is reported to have told her that he was worried that “my dad and [his current partner] might hurt each other.”  He went on to say that they become angry and have arguments about money and that he worries as the father’s partner has “smashed [the father] in the face” on one occasion.  However the report writer went on to say “[the child] said that he was not worried that [the father] would harm [the new partner] stating “my dad would never hurt girls.”  Whilst as I observed to the parties during the course of submissions, that may be pregnant with the assumption that the child therefore thinks his father would hurt men, plainly that would be an unsafe inference to draw, and I do not make it.

4. Ms R went on to state that exposure to family violence is detrimental to children, and the issue would need exploration at any final parenting proceedings.  I accept that evidence.

5. As to the question of physical discipline, the mother says that the child has told her that on one occasion he suffered “physical harm” when “he was struck by his father several times on his legs when he could not spell the word “cupboard.””  The father denies that he has ever so struck the child.  Moreover, to Ms R, the child “did not express any fear of being physically harmed to himself by either his father or by [the father’s partner].”

6. Finally the mother relies upon the alleged neglect of the father in caring for the child.  She says that in text messages which she exchanged with the paternal grandmother on 16 December 2014, the grandmother had said, in the context of a discussion about moving the child away from the father’s care:

   It’s the neglect that truly makes me want to punch [the father] out…

7. The mother conceded that there was no specificity as to the neglect identified by the grandmother, but pointed to material annexed to her own affidavit which speaks to occasions when the child has been presented to members of the mother’s family with dirty clothes, not wearing underwear and with head lice.  Further it was said that the child was “always hungry” when he arrived to spend time with those relatives.

8. Again, however, these allegations are without any real specificity or context.  It is not parental neglect for a child to become dirty; it is an ordinary part of childhood.  It is not parental neglect for a child to have head lice; that is a common enough ailment of many children.  It is not parental neglect per se if a child is not wearing underwear.  Likewise the fact that a child may be hungry after a journey would scarcely be surprising.

9. Again, however, the father denies any such wrongdoing by him, and explains that his mother’s conduct in December 2014 was attributable to them having a temporary rift at that time.

10. It will be appreciated that one of the difficulties which the absence of cross-examination gives rise to in this case, is that the conflict between the parties’ contention cannot be resolved.  However it seems to me that no unfairness arises to the mother if I consider her case at its highest, to see whether or not, if her evidence were accepted in its entirety, a court would be able to make a finding that a return to New Zealand would create a grave risk that the child would be exposed to physical or psychological harm.  In my view the evidence would not so permit a court to conclude.  Particularly:

    ·The child does not feel at any risk of physical harm from either the father or his partner, and on the evidence, any corporal punishment of him by the father was a one-off event, which does not appear to have affected the child’s feeling of safety when in his father’s care;

    ·Whilst exposure of a child to domestic violence is a potential risk of harm to them, it does not appear as though, other than on one occasion, the child has witnessed physical altercations between his father and his partner, but rather has experienced exposure to arguments.  Whilst less than desirable, of itself that falls well short of establishing a grave risk of exposure to psychological harm;

    ·The assault of the mother by the father during the course of the relationship also appears to have been a one-off event, and in that context does not appear to predict a likely recurrence of that in the father’s current relationship, and certainly that has not been reported by the child;

    ·The alleged neglect in 2014 of the child by the father was not specified by the grandmother, and such a general statement, only occupying a single line in a text message, could not possibly be sufficient to found a grave risk of exposure to harm;

    ·The alleged neglect which the mother’s family members give evidence of is consistent with ordinary childhood development and ailments.  

11. Accepting that it is for the mother to persuade me of the existence of the grave risk, and even taking her evidence at its highest and her allegations cumulatively, her case falls far short of satisfying me to the requisite standard.  The evidence is neither clear and compelling, nor the harm in question of a substantial or weighty kind.  Accordingly her attempt to rely upon the matters raised by regulation 16(3)(b), as a basis for enlivening any discretion not to order the return the of child, fails.

Child’s objection to return

The law

1. Regulation 16(3)(c) requires each of the following to be established by the mother:

   ·The child objects to being returned;

   ·The child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

   ·The child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views.

Evaluation

1. The mother says that the child has indicated to her that he does not want to return to New Zealand.  She also says that, when she asked the child where he wanted to live, he advised “that it is a hard decision but he would like to stay in Australia because he likes his school.”  She says that “he has settled into [his school] and has his maternal grandmother to take him and pick him up from school every day.”  She further says that the child has told her that “if he is to go back to New Zealand this will make him cry as he wants to stay in Australia.”

2. More recently in her affidavit filed by leave during the course of the hearing, the mother deposed that the child “has made it clear that he does not want to reside in New Zealand with his father.”

3. Anticipating this matter being relied upon by the mother, a Hague report pursuant to regulation 26 was prepared on the application of the Department.  In that report, Ms R said that the child “did not appear to have been coached or prepared for the interview.”[11]  She went on to say that he was positive about the school he attended in New Zealand, seemingly because he liked his school uniform and its athletics program.  He spoke warmly of his time in New Zealand and “spoke fondly” of his father’s partner’s son who lives with the father.

   [11]Paragraph 4.

4. At paragraph 12 of the Hague report there appears:

   [The child] said he was worried about being away from [his father] and missed him.  He said that he would like [his father] and maternal grandfather to live in Australia.  He added that this would be unlikely to happen as his parents do not get along with each other.  He thought he would like to return to New Zealand for holidays although he would be initially shy when he saw his friends.

5. Later in the report the child is recorded as saying “it would be cool” if he returned to New Zealand, but that living in Australia was also “fun.”  Ms R opined at paragraph 19:

   ..[The child] appears to have made a good adjustment living in Australia with his mother however clearly misses his father and other significant people in New Zealand.

6. Ms R opined that “there was no evidence that [the child] had a strong objection to returning to New Zealand.”  Albeit that in so expressing her opinion she has conflated the first two criteria in regulation 16(3)(c), and did not report specifically as to whether the child objects to being returned, I read her report as saying that the child does have some objections to being returned, but that those are not strong.

7. I accept Ms R’s evidence, which is, in substance, consistent with that of the mother in any event.  The child probably does have a preference for living in Australia, but I am not satisfied that it shows a strength of feeling beyond the mere expression of a preference or an ordinary wish.  Particularly in that regard I note Ms R’s concluding remarks that the child’s “predisposition makes it likely that he will easily express positive sentiments to each parent about his feelings of living with them.”

8. I am not satisfied that the mother has established the matters required under regulation 16(3)(c).

Determination

1. All of the matters required by regulation 16(1) have been established by the Department.  None of the matters in regulation 16(3) have been established by the mother.  There is therefore no opportunity for a discretion to be exercised in this case.  By terms of regulation 16, I must make a return order for the child.  The only discretion which I have is as to when that order should be made with effect from.  Initially the Department sought that the child leave Australia on or before 17 September 2016.  However during the course of submissions the Department indicated that the purpose of that order was to coincide with the end of the Australian school term, and that the new school term in New Zealand does not commence again until early October 2016.

2. I am satisfied that the appropriate time for the return of the child should be at the end of the first week of the forthcoming Queensland school holidays.  That will therefore give the child some opportunity to re-fit into his New Zealand life before having to commence school in early October.  I will therefore order that the child leave the Commonwealth of Australia on or before 23 September 2016, and arrive on or before 24 September 2016, but otherwise there will be orders as sought by the Department.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.         

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 16 September 2016.

Associate:

Date: 16 September 2016