Director-General, Department of Community Services and Bindle

[2009] FamCA 122

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES & BINDLE [2009] FamCA 122

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Whether the father consented to the mother’s removal of the child from New Zealand to Australia – consent must be real and unequivocal consent to permanent removal – the relevance of text messages sent by the father to the mother –  the exercise of discretion under Regulation 16(3) – taking the welfare of the child into account in the exercise of discretion

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986

DeL v Director-General, NSW Department of Community Services & Anor (1996) FLC 92-706

APPLICANT: Director-General, Department of Community Services

RESPONDENT: Ms Bindle

FILE NUMBER: SYC 5232 of 2008

DATE DELIVERED: 25 February 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 2 December 2008 and 12 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ward

SOLICITOR FOR THE APPLICANT: Department of Community Services

COUNSEL FOR THE RESPONDENT: Mr Barry

SOLICITOR FOR THE RESPONDENT: Jane Adams Lawyer

Orders

1. The application filed by the Central Authority on 8 September 2008 is dismissed. 

2. The Orders made by Judicial Registrar Johnston on 17 September 2008 be discharged.

IT IS NOTED that publication of this judgment under the pseudonym Director-General, Department of Community Services & Bindle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5232 of 2008

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES 

Applicant

And

MS BINDLE

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The Central Authority seeks orders for the return of the child L, born in February 2008, to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the regulations”).

2. This is a dispute as to forum, not a dispute as to parenting capacity or future parenting arrangements for the child. 

3. The regulations are intended to be construed (inter alia) as recognising, in accordance with the convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence. 

4. The Central Authority filed a Form 2 Application on 8 September 2008.  That application is supported by an affidavit of Ms S affirmed 5 September 2008, an affidavit of Mr D (“the father”) sworn 20 August 2008, an affidavit of the father sworn 13 November 2008, an affidavit of the father sworn 16 December 2008, an affidavit of Ms W sworn 20 August 2008, an affidavit of Ms W sworn 28 October 2008, an affidavit of Mr E sworn 15 December 2008, an affidavit of Ms H sworn 15 December 2008 and an affidavit of Mr M sworn 15 December 2008.  The respondent (“the mother”) relies on her affidavit sworn 29 October 2008 and her further affidavit sworn 29 January 2009.  

5. In addition, the mother gave oral evidence on 19 November 2008 and 12 February 2009.  Both the father and Ms H gave oral evidence via audio visual link from Auckland on 12 February 2009. 

CHRONOLOGY

1. The mother was born in Australia in May 1968 and is currently aged 40 years. 

2. The father was born in England in May 1979 and is currently aged 29 years.

3. The mother has a child of a previous relationship, T, born in May 1998.

4. The father has a child from a previous relationship, S, born in December 2002. 

5. In approximately 2003 the mother moved to New Zealand from Australia.

6. In May or June 2007 the parties commenced a relationship and the mother became pregnant shortly after the relationship commenced.  The parties commenced to live together shortly before the birth of L (the mother says 10 February 2008). 

7. In February 2008 L was born in New Zealand.

8. On 18 April 2008 the parents separated.

9. The mother and L stayed at a friend’s place (Ms H’s) for about two weeks and returned to the father’s home on Friday 2 May 2008.  The father at that time was renting a house which had been sold and he had to move.  The parties discussed moving to a new premises together but a few days before that was to happen the mother informed the father that she did not want to live with him. 

10. What happened between that time and the mother leaving New Zealand is the subject of more detailed discussion below. 

11. On 17 May 2008 the parents again separated and the mother went to live with Ms H, although over the next three weeks the mother says she stayed at the father’s house a couple of times on Wednesday and Saturday nights. 

12. On 25 May 2008 the father sent a text message to the mother. 

13. On 28 May 2008 the mother’s other child, T, underwent an operation in New Zealand. Following the operation, the child moved with his father, Mr N, to Australia. The mother consented to that happening on the basis that she would be following T to Australia within a few weeks. 

14. On 30 May 2008 the father sent a text message to the mother.

15. On 19 June 2008 the father sent a text message to the mother.

16. On 21 June 2008 the mother took L from New Zealand to Australia.

17. The mother sent a text message to the father on 22 June 2008.

18. The parties spoke on the telephone on 29 June 2008.  Since that time however the mother has not taken the father’s calls. 

19. On 28 August 2008 the father authorised the Central Authority to act on his behalf and undertook to meet the Central Authority’s costs of returning the child to New Zealand. 

20. The Central Authority filed an application in this court on 8 September 2008.

21. On 17 September 2008, Judicial Registrar Johnston made ex parte orders placing L on the watch list, for surrender of passports and directions as to service.  There was a further mention before the Judicial Registrar on 23 September 2008 and the matter was listed for hearing before me. The mother was given notice to attend for cross examination and although it was unusual, because the central question was the issue of consent, I allowed cross examination of the mother on 19 November 2008.

22. When the matter was before me on 19 November 2008, the Central Authority indicated that the father was at a building work site, working with a group of people on a project and that the father could not be reasonably interrupted for the purposes of being available to give evidence by electronic means.  There were deficiencies in the father’s written material which, if left unexplained by the father, may well have meant that I accepted the mother’s version of the conflicting stories in relation to the issue of consent.

23. I allowed an application by counsel for the Central Authority for an adjournment to allow the Central Authority to file further evidence.  At a mention on 27 November 2008 the matter was adjourned to 12 February 2009 for the father and Ms H to give oral evidence.  The mother also gave further oral evidence on that day.

THE LAW

1. There are concessions made by the mother in relation to a number of the matters the Central Authority has to establish, including:-

   29.1.That an application for a return order has been made.

   29.2.That the application was filed within one year after L’s removal or retention.

   29.3.That L was habitually resident in New Zealand prior to her removal to Australia.

   29.4.That the father had a right of custody by operation of law.

   29.5.That the removal of L is to be considered wrongful as being in breach of the father’s rights of custody in that it interfered with or was contrary to those rights of custody. 

2. Given that those matters are conceded, there is an obligation for me to make an order for the return of L subject to the discretion set out in regulation 16(3) of the regulations.  The discretion not to return only arises if the mother establishes one of the matters set out in regulation 16(3).

3. The mother has not filed a response or cross application but the material in her affidavit makes it clear that the mother’s opposition to returning L is based upon her assertion that the father consented to the child’s removal.  The mother relies on regulation 16(3)(a)(ii), namely that the father “had consented ....... in the child being removed to ..... Australia”.

4. The mother is obliged to prove the father’s consent. 

5. I of course may order L’s return to New Zealand even if the mother establishes that the father gave his consent to L’s removal. 

6. There are differences in the evidence given by both the mother on the one hand and the father and Ms H on the other regarding several significant factual matters going to whether or not the father did consent to L’s removal from New Zealand.

THE TEXT MESSAGES

1. The first text message, which was the subject of evidence, was sent by the father to the mother on 25 May 2008 in the following terms:-

   ·25 May 2008

   Already explained it was you I was talking about. With a kiss. In three weeks, babe, it won’t matter. There’s only you I want as my wife and three weeks we’ll be set free, both of us. With a kiss.

2. In his affidavit sworn 16 December 2008 the father acknowledged that he sent the text message of 25 May 2008, but advanced an entirely different interpretation to that advanced by the mother.  The mother stated that it was a reference to the mother’s impending departure with L from New Zealand.  The father on the other hand said the phrase “three weeks we’ll be set free” constituted an acknowledgment by him only that she would not be returning to his rented home.  In oral evidence the father stated further that the words meant that the mother would be entering into a lease of her own within a three week period and “set free” meant closure on all feelings they had for each other and recognition that the relationship had no future.

3. The mother says that she received the following further text messages on her mobile telephone from the father:-

   ·30 May 2008

   U have 2 buy ur tickets and go to ur family,

   start a new life for u and [L].

   Leave this shit behind including me

   ·19 June 2008

   Want u 2 leave mw alone.

   Am happy im not with u.

   Will ignore u from nw on.

   Txt when u land.

4. The three text messages were sent over a period of almost one month.  I am unable to conclude that the father sent them in the heat of the moment. 

5. The mother in her oral evidence said that she had these text messages on her mobile phone, she showed the phone in the witness box and the Central Authority accepted that these text messages were on her mobile phone.  The mother’s oral evidence was that the text message on 30 May 2008 was sent at 2.50pm New Zealand time from mobile phone number 027….  The message on 19 June 2008 was sent at 10.42pm New Zealand time from the same mobile telephone. 

6. It was agreed that mobile telephone number 027… was the father’s mobile telephone number.

7. The father’s evidence is that he did not send the text on 19 June 2008.  The father originally said he did recall sending a text similar to the text on 30 May 2008 but not with the reference to L in it.  He said that was consistent with his view that L was not to leave New Zealand. 

8. The problem with that evidence is that the removal of the words “and [L]” from the text message does not explain why the word “tickets” is used in the first line.  The father did not seem to seriously suggest that the mother in some way has technically managed to enter into her mobile phone, fake one of the text message said to have been sent from the father and manipulated another text message that he, in fact, did send.  I have no evidence as to whether or not that is technically possible but having seen the mother in the witness box I do not accept that she has done that.  The explanation that the father suggests was that someone at his work may have had access to his mobile phone and sent messages to the mother without his knowledge. 

CREDIT

1. Several aspects of the evidence before me in these proceedings lead me to prefer the version of events given by the mother to that given by both the father and Ms H where any inconsistencies arise. The evidence of the text messages is of particular significance in this respect. 

2. In oral evidence the mother maintained in all material aspects the version of events outlined in her affidavits.  She was an impressive and credible witness.  The father’s demeanour when answering questions, even allowing for the video link, was nowhere near as impressive.  He failed to deny particular events and conversations in his affidavit sworn 13 November 2008, including that the mother asked him in April 2008 to pay half the fee for L’s passport, that the mother informed him on or about 17 or 18 May of her need to return to Australia with L in order to obtain family support, and that he had been given a copy of L’s passport photo in April 2008.  The father’s denial of certain aspects of the mother’s version only found expression in his third affidavit of 16 December 2008, after he had had the opportunity of reading the transcript of the mother’s oral evidence given on 19 November 2008.

3. Each of the three text messages on the mother’s phone can be interpreted as implying an awareness of the mother’s intentions as well as consent to her removal of L from New Zealand.  The first text message, sent on 25 May 2008, contains the phrase “three weeks we’ll be set free.”  As mentioned, it is the mother’s case that this refers to her impending departure to Australia.  The father’s assertion is that the text message alludes to the mother’s departure from their former home and that he expected she would enter a new lease in three weeks.  The mother says it is a reference to her telling the father that she would be leaving New Zealand for Australia in three weeks.  I find that the father’s explanation of the words “three weeks we’ll be set free” is inherently less likely than the mother’s interpretation.

4. The text message of 30 May 2008 provides further evidence of the father’s consent to the mother’s departure with L to Australia.  It contains two words (“tickets” and “[L]”) that clearly suggest an awareness of L’s involvement in the mother’s plans.  The father stated in oral evidence that he did send a text along those lines, however it did not contain either of those words.  He stated that if the mother received a text message from his phone which contained those words, then the text had not been sent by him. When asked by counsel for the respondent to explain further, the father stated that someone must have taken his phone without his knowledge and sent the text in an apparent attempt to assist him in resolving his domestic problems. The father stated that he had asked around, but no one had admitted to sending the text.

5. The text message of 19 June 2008 provides further support for the mother’s assertion that she possessed the father’s consent (albeit reluctant consent) for her removal of L from New Zealand.  The phrase “Txt when you land” suggests awareness on the part of the father of the mother’s impending departure to Australia.  No evidence was put forward of any other flight either contemplated or actually undertaken by the mother.  The father stated that this text had not been sent by him.

6. The explanation offered by the father for the presence of the text messages of 30 May 2008 and 19 June 2008 in the mother’s phone is inherently unlikely, and I do not accept it as genuine. I also note that the explanation surfaced for the first time under cross-examination and was not contained in any of his prior affidavits.

7. I find that the text messages are authentic and were written and sent by the father.  My finding as to their authenticity substantiates the mother as a credible witness. 

8. The Central Authority submitted that as Ms H is the least interested witness in these proceedings, her evidence should be preferred to that of the mother.  In support of this submission the Central Authority pointed to the fact that Ms H is not in a position to benefit from an outcome in these proceedings.  Although that may technically be true, Ms H’s neutrality is by no means absolute, as indicated by the fact that on 6 June 2008 she swore an affidavit to be used in proceedings in the Federal Magistrate’s Court concerning the child T.  The affidavit was in support of T’s father Mr N’s application to have T live with him. Ms H acknowledged in oral evidence that this was not something that was in the mother’s interests. When asked whether it was her strong view that T would ordinarily be better off living with his father than with his mother, Ms H replied “definitely”.  When asked if there was any connection between her attitude towards the proceedings involving T and her position in relation to this matter, Ms H stated that she “[does not] see why there should be”.

9. Despite Ms H’s denial of any connection in her own mind between the two sets of proceedings I find that she is interested in the proceedings concerning T and that that interest informed her evidence in the present case.  She stated that she contacts Mr N’s partner Ms N approximately once a month to check up on T and see how he is doing because “he’s like a son to me”.  When asked how many conversations she has had with Ms N, Ms H estimated seven or eight. Taken in conjunction with her assertion that it would “definitely” be in T’s best interests to live with Mr N as opposed to the mother, it is difficult to accept that Ms H’s attitude towards what she regards as the mother’s inability to care for T had no influence on the evidence that she gave in these proceedings. This lack of neutrality leads me to place less weight on Ms H’s evidence than if she was a disinterested bystander.

10. I find that the mother is a more credible witness than either the father or Ms H and that her evidence is to be preferred in the areas where their evidence is in conflict. 

CONSENT

1. Consent must be real and unequivocal consent to permanent removal.  It is not a requirement that a parent be happy with the agreement which has been reached.

2. Consent need not be in writing.  The Central Authority initially submitted that the lack of corroborating documentary evidence or evidence from other witnesses leaves the court in the position of having to determine consent based on conflicting affidavit evidence.  I do not accept that there is an absence of documentary evidence in this case.  The mother has given evidence of the receipt by her of text messages sent by the father from his mobile phone. 

3. The mother’s evidence is that on or about 17 or 18 May 2008 the mother said to the father “I am going back to my family in Australia”.  The mother then said, “I wish I didn’t have to take [L] from you but I need family support”.  The mother says the father replied, “Yes I understand and I would do the same if it were me”.  The mother says that this conversation took place at around about the time she moved out of the father’s home.  I accept that conversation took place. 

4. The father states in his affidavit sworn 13 November 2008 that there was no discussion between he and the mother about the prospect of her leaving the country with L until T became sick and Mr N arrived in New Zealand. According to the mother, Mr N arrived on the morning of T’s operation on 28 May 2008.  I do not accept that there was no conversation between the mother and father about L returning to Australia prior to this date. 

5. The mother says over the next three weeks she stayed at the father’s home a couple of times on Wednesday and Saturday nights.  The mother says that she and the father had a discussion about him buying some of her things (refrigerator, washing machine, microwave oven), but the father indicated that he did not want to.  He said, “I prefer not to, it would be helping you take my daughter away”.  The mother then said to him, “Ok, I will have to sell them because I need the money to get back to Australia and set myself up”, or words to that substantial effect.  The father denies these words were said, but I accept these words were said. 

1. The mother then says that her goods were sold and that when the mother’s refrigerator and dining table were sold, the father was present and the mother was not present when the people came to collect those items on 19 June 2008.  The mother says the father said to her at that time words to the following effect, “I know you’re really going because otherwise you wouldn’t be selling your things”.  The father’s initial affidavit in reply did not deny he said these words but in his subsequent affidavit, the father denies having said these words.  I accept the mother’s version of this conversation. 

2. In the April holidays 2008 the mother says that she said to the father “I left the passport application form on the coffee table for you to sign”.  The mother was living at Ms H’s house at the time.  When the mother came back to the father’s house, she saw that the application form had been ripped up.  She said she said to the father “Why did you do that?”  He replied, “I’m sorry”.  The mother says that the father then went and obtained a new passport application form.  She proceeded to fill that form out without his signature (realising that the form only needed one parent’s signature).  The mother said that she informed the father that she had done that and that she asked him whether or not he would pay half the fee.  The father is said to have replied, “No I don’t want to help you leave with [L]”.  She said she gave him a copy of L’s passport photograph.  She said the father said to her, “It’s horrible for me because it is a reminder that my daughter is leaving the country”. 

3. The father says that the discussion involving the passport happened earlier than April (and in fact shortly after L’s birth in February).  The father says it was around about that time that he ripped up a passport application.  He denies knowing anything about obtaining a subsequent application form or the completion of it and said he was unaware that a passport could be issued upon the signature of one parent. 

4. Where the parties are in issue about what happened relating to L’s passport, I accept the mother’s version. 

5. The mother says that in late May 2008 her son T had to have an operation (a colonoscopy) and she agreed for T’s father, Mr N, to come from Australia to New Zealand and to take T back to Australia following the operation. It was the mother’s intention that she would follow in a few weeks, taking L with her.

6. The mother says in that context that she had a discussion with the father in which the father commented, “Yeah, he (referring to T) probably needs to be nearer his dad”. 

7. The mother says she had a number of discussions about her return to Australia with the father as she made it clear to him that she needed to go back to Australia but she wanted him to be in L’s life.  Her evidence is that she said to the father, “Maybe down the track we can make it work if we both go to counselling and that sort of thing”.  This was a reference to the continuation of the relationship. The mother said that at this time they were both expressing a love for one another and that it was an emotional time.  She said that the father said to her, “The moment you get on the plane, that’s it.  It will be over and I’m moving on”.  This evidence is consistent with the father’s text message of 19 June 2008. 

8. The father concedes that there was discussion between the mother and him about the mother wanting to take L out of the country after T had become sick.  He however says he does not accept that the mother was persistent in her wish to return to Australia after T left.  He says that he did encourage the mother to return to Australia for a visit if she felt she had to do that but only on the basis that L was left with him.  The father agrees that he said to the mother that he thought that T needed to see more of his father. 

9. In relation to the matters discussed in paragraphs 62 to 65, I accept the mother’s version. 

10. The father says he does not want to come to Australia to live and work.

11. In oral evidence the mother said that the father has not paid any child support since April.  After arriving in Australia on 21 June 2008 the mother lived with her parents at C in northern New South Wales.  T is currently living with his father in G on the central coast.  The mother has now found rented premises in G and moved there on 17 December 2008.

12. The mother saw T about five times during the period when she was living in C.  The cost of her travelling down was difficult.  Now that she is living in G, she is with T for half of school holidays, every second weekend and on Wednesday nights.

13. In oral evidence the mother confirmed that she purchased her ticket on 18 June 2008 and the father did not know the date on which she and L were leaving New Zealand.  The mother agreed that the father and she were involved in heightened emotions in the period leading up to her leaving New Zealand.

14. The mother said that on 14 June 2008 she took L to visit the father and on this occasion he was drunk and in a very weird mood. 

15. In oral evidence the mother said that she did not inform the father of the exact date on which she and L were leaving the country, as she feared that he would lose his temper. She stated, however, that she gave him an estimate of when she was going, and pointed to the father’s text message of 25 May 2008 as evidence of his knowledge of the approximate date.  The mother said she had previously been married to a very abusive man (her second husband, not T’s father). 

16. In paragraph 12 of her affidavit, Ms H states that in or about the first week of June 2008, she had a conversation with the mother in which the mother informed her that she had spoken to a lawyer friend of hers about leaving New Zealand with L without the father’s consent.  The mother did not dispute that she had obtained advice from a lawyer who had made inquiries on two occasions to ascertain whether or not L had been placed on the CAPPS listing (a system designed to stop people leaving New Zealand who are on that list).  I accept that the mother, having obtained the father’s consent, did not want to jeopardise that position and was secretive in terms of making arrangements in relation to leaving New Zealand because she says the father could be volatile and she feared that the father might withdraw the consent that he had given.  Clearly the mother did not want to create an opportunity for the father to do so.  That however does not in any way take away from the fact that the father had given his consent, albeit that he did not know the exact date upon which the mother was leaving New Zealand.

17. Ms H states at paragraph 9 of her affidavit that she had a conversation with the mother in or about mid to late May 2008, in which the mother informed her of her intention to travel to Australia with L and stay with her parents.  According to Ms H, the mother then said that “[the father] was not to know as he would prevent me from going”.  This evidence can be interpreted in a similar way to the evidence regarding the lawyer and the CAPPS listing in that it is indicative of the mother’s concern that any further information provided to the father regarding her intended departure from New Zealand with L may have provoked him into withdrawing the consent that he had earlier given.  Ms H’s evidence on this point can be regarded as consistent with that of the mother.

18. Ms H states at paragraph 15 of her affidavit that from or about May 2008 the mother said to her words to the effect “I have asked for [the father’s] permission to take [L] to Australia and [the father] has refused to consider this,” and “[the father] said that I could go to Australia, but not with [L].” Ms [H] further states that she had a similar conversation with the mother on a number of occasions.

19. It was put to Ms H in cross-examination that the conversation she deposed to in paragraph 15 of her affidavit did not take place.  Ms H stated that it had.  The difficulty with this aspect of Ms H’s evidence is that it is inconsistent with the text messages sent by the father to the mother which indicate the father’s knowledge of the mother’s intentions.  Once it is accepted that the mother was sent the text messages as they appear in her phone and that the explanation offered by the father for their origination from his phone is inherently unlikely, then it is difficult to understand why the mother would have told Ms H that she did not in fact have the father’s consent.  I do not accept Ms H’s evidence where it conflicts with that of the mother on this point.

20. Ms H asserted in paragraph 6 of her affidavit that she was aware that the mother had applied for and obtained a passport for L without the father’s knowledge.  That in itself is not admissible evidence and it is unclear as to the basis upon which that statement is made.  The following sentence indicates that it might be on the basis that the mother said to Ms H that the first the father would know about her return to Australia was when she sent him a text from Australia.  It would not be inconsistent with the mother’s evidence that she may have said to Ms H that the first the father would know that she had actually left New Zealand was when she sent him a text from Australia.  That statement however to Ms H is insufficient for Ms H to draw the conclusion that the mother had applied for and obtained a passport for L without the father’s knowledge.

21. The mother’s evidence that she gave permission to T’s father to return permanently with T to Australia fits with the mother’s overall narrative.  I find on balance she would not have agreed to T going to Australia if she did not believe that she had L’s father’s consent to leave New Zealand with L for Australia. 

CONCLUSION

1. It follows from the discussion above, that I have evidence before me that mother possessed the father’s consent to her removal of L from New Zealand, and that even though she was careful to withhold specific details from the father for fear that he would withdraw it, the father did not withdraw his consent at any time prior to her leaving New Zealand with L.  The version of events offered by the mother in her affidavits and oral evidence indicates that the father was aware of her intention to relocate to Australia with L and consented unequivocally to that course, albeit with some measure of reluctance.  The mother’s assertion that she kept the specific date of departure from the father due to her concern that he would change his mind fits in with the tone of the text messages and the content of the conversations between them in the period leading up to the mother’s flight.  It is clear that the father was not enthusiastic about the mother’s decision to relocate with L to Australia, but it is also clear that he consented to her plan to do so.  That consent finds its clearest expression in the text message of 30 May 2008, for which the father could offer no credible alternative explanation.

2. I conclude that the mother has satisfied the evidential burden of proving the father’s consent.

EXERCISE OF DISCRETION

1. Notwithstanding my finding as to the father’s consent, the word “may” in Regulation 16(3) means I still need to consider in all the circumstances of this case, whether or not I should still order the return of L to New Zealand in compliance with Australia’s obligations under the convention. There is no guidance in the Regulations as to how this discretion is to be exercised but the High Court has said “The welfare of the child is properly to be taken into consideration in exercising that discretion” (see DeL v Director-General, NSW Department of Community Services & Anor (1996) FLC 92-706 at p 83,456).

2. It is agreed that the mother has been L’s primary carer since L was born.  I infer that there is a strong attachment between L and her mother.

3. The Central Authority submits that New Zealand is the most appropriate forum in which to determine arrangements for L’s future care (including any relocation to Australia), whilst ensuring that L has an opportunity to form attachments with both her parents during a critical stage of her young life.

4. It is clear that it is in L’s best interests for some arrangements to be made for her to have an opportunity to form attachments with her father and she is now at a critical age when attachments are formed.  The Central Authority has filed evidence that suggests that if I exercise my discretion to return the child to New Zealand, it is probable that it would take about nine months before the New Zealand Court could determine an opposed application by the mother to relocate  from New Zealand to Australia.  Mr E gives evidence that the lead time of nine months could extend if there are cumulative delays in timetabling.  The submission by the Central Authority is that an interim arrangement whereby L spends regular and frequent time with her father will be best reached if L is returned to New Zealand. 

5. The father is in full time employment.  He has not paid any money to the mother for L’s support since April 2008.  There is no evidence about his ability to come to Australia on a regular basis but I infer that he has some ability to do so.  He has indicated that he has no desire to come to Australia to live on a permanent basis, but again there is nothing to indicate what ties him to New Zealand and the mother asserts that he would be able to come to Australia. 

6. The father is free to and has the financial capacity to institute proceedings immediately in Australia in a court exercising jurisdiction under the Family Law Act for orders that would facilitate L spending time with him.

7. The mother has given evidence that she does not have the financial capacity to return to New Zealand (although she gave evidence that she was prepared to return if she was funded to do so).  The Central Authority has filed evidence (Mr M’s affidavit) to indicate the level of social security benefits the mother would receive whilst she was awaiting any application she made to return to Australia to be heard by the New Zealand Courts. 

8. A factor that I may take into account when exercising my discretion is the currently pending proceedings in the Federal Magistrates  Court involving a dispute between the mother and T’s father about where T will live.  T is currently sharing time with both his parents who now live on the central coast of New South Wales.  

9. The mother has made it very clear that if L was ordered to return to New Zealand then she would have no hesitation in returning with the baby.  It is likely that the mother would then live in New Zealand for an extended period in circumstances where she would have no or little time with T.  I infer that that would have some impact upon her emotional state which in turn must have some affect on her ability to fulfil her role as the primary carer for L.

10. Given that I have found that the father consented to the mother coming to Australia and notwithstanding that the purpose and intent of the regulations is that a child should ordinarily be returned quickly to the jurisdiction of habitual residence from which the child came, in the circumstances of this case I find that it is in L’s best interests not to be returned to New Zealand.  The father is able to make an application in Australia. 

11. Accordingly, the application by the Central Authority should be dismissed and the ex parte orders of the Judicial Registrar placing L on the watch list and relating to surrender of passports should be discharged. 

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  25 February 2009