Director-General, Department of Community Services and Wenceslas

[2006] FamCA 1493

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES & WENCESLAS [2006] FamCA 1493

CHILD ABDUCTION - Hague Convention

Care of Children Act 2004 (NZ)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Gross v Boda 1995 NZFLR 49

APPLICANT: Director-General, Department of Community Services

RESPONDENT: Ms Wenceslas

FILE NUMBER: SYF 4027 of 2006

DATE DELIVERED: 18 December 2006

PLACE DELIVERED: Sydney

JUDGMENT OF: Steele J

HEARING DATE: 18 December 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tockar

SOLICITOR FOR THE APPLICANT: Director, Legal Services
Department of Community Services

SOLICITOR FOR THE RESPONDENT: Mr Lee
Le Vaccaro Lawyers

Orders

1. That the Central Authority make such arrangements as are necessary for the return of the child [K] (male child) born in September 1996 to Auckland New Zealand, accompanied by the child’s mother.

2. That the Registrar of the Family Court of Australia, Sydney Registry hand over the passports of the following persons to the legal representative for the Central Authority as soon as possible to facilitate the return of the child to New Zealand in accordance with order 1:

   (a)Passport of [K] born in September 1996

   (b)Passport of the mother born in September 1977

3. That within 14 days of the date of this order, the father of the child, Mr [L] of [G], New Zealand book and pay for the air tickets of the child and the Respondent Mother to travel directly from Sydney to Auckland, New Zealand as soon as practicable, and provide details of the flight booking, electronic tickets, and proof of payment to the legal representative for the Central Authority for forwarding to the solicitors for the respondent. The Departure date for the mother and child shall not be before 4 January 2007.

4. That the Respondent Mother do all things necessary to fully co-operate with these orders including but not limited to attending Sydney International Airport with the child at least 2.5 hours prior to the nominated flight.

5. That should the Respondent Mother not present at the Sydney International Airport with the child on the nominated date for return to New Zealand, or should the Respondent Mother elect not to return to New Zealand with the child after the making of these orders, the following shall apply :

   (a)the Central Authority is at liberty to immediately request the paternal grandmother of the child or another adult nominated by the father to come to Australia to collect the child; and

   (b)the Respondent Mother shall hand the child over to the paternal grandmother of the child or another adult nominated by the father on a date, time and venue as advised by the legal representative for the Central Authority; and

   (c)the Central Authority has liberty to restore this matter on 24 hours notice to seek further orders should the child not be presented at the nominated venue to be handed over in accordance with these orders;  

6. That the Australian Federal Police permit the child [K] born in September 1996 to depart Australia and return to New Zealand after being presented with the child’s flight details and a sealed copy of these orders by the Legal Representative for the Central Authority and for the avoidance of any doubt, it is requested that, subject to Order 8 below, any previous orders that restrain the removal of the child [K] from the Commonwealth of Australia be varied and discharged to allow compliance with this order; 

7. That should the Respondent Mother not accompany the child to New Zealand, the legal representative for the Central Authority return the passport of the Respondent Mother Ms [Wenceslas] to her solicitor as soon as possible after the child’s arrival in New Zealand;

8. That following the departure of the child [K] born in September 1996 from Australia, the Australian Federal Police delete the names of the following persons from the PACE alert system :

   (a)       [K] born in September 1996

   (b)       Ms [Wenceslas] born in September 1977

9. That any remaining orders made by Judicial Registrar Johnston on 11 October 2006 be discharged.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4027  of 2006

Director-General, Department of Community Services

Applicant

And

Ms Wenceslas

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for orders for the return of a young boy, who is just ten years of age, to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations (“the Regulations”). The Child, K, has resided principally with his mother in New Zealand. Pursuant to orders made by the Family Court of New Zealand in Auckland on 4 December 2000, K was to live with his mother but be in the care of his father every alternate weekend from 5.00 pm Friday until 5.00 pm Sunday and for half of the school holidays. The Father has regularly exercised the access provided by these orders in the period since they were made.

2. It is not in dispute that in September 2006, following a dispute involving, inter alia, the Mother and Father on the previous evening, the Child was brought to Australia by the Mother without the Father’s knowledge or consent. 

3. The Mother was born in Poland and is a Polish citizen.  The Father was born in New Zealand and is of Maori descent.  The Child, K, was born in Auckland, New Zealand in September 1996.

4. On 11 October 2006 an Application was filed in this Court by the Director-General of the Department of Community Services as the Central Authority seeking orders pursuant to the Regulations for the return of the Child to New Zealand.

5. The Respondent Mother resists the making of the orders sought on the following bases:-

   (a)The Father did not at the time the Child was removed from New Zealand have “rights of custody” within the meaning of Regulation 4 so as to provide the requisite standing to bring an application pursuant to Regulation 14.

   (b)Even if the Father had “rights of custody” sufficient to provide standing, then the removal was not wrongful because New Zealand was not K’s country of habitual residence as a consequence of the Mother having made a unilateral decision on the day prior to leaving New Zealand to abandon New Zealand as a place of residence with no intention of returning.

   (c)The Father, by consenting to an order in the New Zealand Family Court in Waitakere on 27 June 2005, which had the effect of discharging an order precluding the Child’s removal from New Zealand, acquiesced in the Child being removed to and retained in Australia so that the Court should in the exercise of its discretion refuse to order the return of the Child to New Zealand (Regulation 16(3)(a)(i)).

   (d)Even if the Child was wrongfully removed from New Zealand and has been wrongfully retained in Australia, then the Court should exercise its discretion against ordering the return of the Child because 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 (Regulation 16(3)(b))

   (e)The Child objects to being returned and the Child’s objection shows a strength of feeling beyond a mere expression of preference or ordinary wishes and the Child has attained an age and degree of maturity at which it is appropriate to take into account his views so that the Court should exercise its discretion to refuse to make an order for his return to New Zealand (Regulation 16(3)(c)).

6. It is common ground that the Child’s best interests are not to be treated as paramount in the determination of these issues but the Child’s best interests are a factor in the exercise by the Court of its discretion referred to in paragraph 5 (c), (d) and (e) above.

Short History

1. The Director-General of the Department of Community Services is the Applicant and Central Authority authorised under the Regulations to bring the proceedings.

2. The mother was born in September 1977 in Poland and is now 29 years of age.  She lived in New Zealand for at least some time prior to the birth of the Child in September 1996.  With the Child, the Mother travelled to Australia in September 2006, where she now resides with her parents at C, New South Wales.

3. The father was born in August 1964 in New Zealand and is now 42 years of age.   He is a painter by occupation and resides in Auckland, New Zealand where he has regularly exercised contact with the Child pursuant to orders made on 4 December 2000 in the Family Court of New Zealand.

4. K was born in September 1996 and is now ten years of age.  He was born in Auckland, New Zealand and presently resides with his mother in C, NSW having come to Sydney with her in September 2006.

The Facts

1. The Child, K, was born in New Zealand in September 1996 at a time when the Father alleges the parents were living together.  The Mother denies that and says that for six weeks following the birth she lived with the Father for three nights each week.  Shortly thereafter, it appears the parties separated.  There is no material before me detailing the circumstances of the break up but in November of 1997, a parenting agreement was reached which provided that the Child would live with the Mother and spend some time with the Father.

2. The Mother attempted to take the Child from New Zealand and on 24 March 1999 the District Court at Waitakere made an order preventing the Child from being removed from New Zealand.  On 10 June 1999 an order was made providing for the Child to live with the Mother but spend time with the Father.  On 4 December 2000, the Family Court of New Zealand discharged the earlier orders made in June 1999 and made new orders providing for the Child to be in the Father’s care every second weekend and for half the school holidays and be in the Mother’s care the remainder of the time.  The Father has, since that time, exercised contact at least at the level provided for by those orders.

3. In March 2002 and December 2004, consent orders were made suspending the existing order which precluded the Child being taken out of New Zealand.  The suspensions operated for two weeks in 2002 and four weeks in 2004 when the Child came to Australia with his mother to see his maternal grandparents.  Ultimately on 27 June 2005, the order precluding the Child from being taken out of New Zealand was discharged in its totality.  This was done in circumstances where it was recorded that the parties’ grievances had been resolved and that there was no longer any reason to have the Court orders in place.  Again in April 2006, the Mother visited Australia to see her parents who had left New Zealand some years before to reside in Australia.  At that time, she left the Child in the Father’s care in New Zealand.

4. On 14 September 2006 there was a dispute between, inter alia, the Father and the Mother at the premises where the Mother lived, in the suburb of M in Auckland, New Zealand.  The Mother asserts that the circumstances of that evening were violent and were occasioned by the violent conduct of the Father.  She says that the events of that evening were such as to prompt her to leave New Zealand with the Child to come to Australia, where her parents are.  The Father says however that the Mother was extremely intoxicated and suffered injuries at the hand of her boyfriend, Mr H and came to Australia as a result of the Father’s threat made that evening to see his lawyers for the purpose of having the Child removed from her care having regard to her excessive drinking and violence.

5. The Mother says that the events of that evening and the events of 18 September 2005, were events which were typical of and demonstrated the Father's capacity for violence and are such that, to the extent that they were witnessed by K, he will suffer and continue to suffer psychological harm and be placed in an intolerable situation if he is returned to New Zealand.  It is, I think, asserted that those events and the Father’s alleged general violent conduct have given rise to K’s objection to being returned to New Zealand.  There is no suggestion that the Father has ever been violent to the Child.

6. As is typical of these applications, the factual matters have been dealt with on affidavit evidence and have not been the subject of cross examination. The events of 18 September 2005 and 14 September 2006 have, however, been dealt with in some detail in the evidence. 

7. The Mother has provided her own affidavit, to which is attached, her own statement to the Police in Auckland, relating to the events of 14 September 2006 and a family violence report, which has clearly been prepared by the investigating police.  In addition, she has provided a report of a presentation to her doctor on 15 September before her departure for Australia.  She has provided, in addition, an affidavit by Mr T and another by Mr H, who was, at the relevant time, her boyfriend.  It is probably sufficient to say that the Mother, in her affidavit (as opposed to her statement to police), describes a situation where she and her boyfriend were drinking wine on the steps of her premises when the Father and her neighbour, Mr W came uninvited into her home, tied her hands behind her back, punched her and kicked her all over her body.  In her statement made to the Police the day after these events, she alleged that the next door neighbour, Mr W, (whom she alleges in her affidavit, assisted the Father in tying her up) came over to her home beat up her boyfriend and then threw him to the ground and put him into a taxi.  In that statement made to the police, she suggests that the Father arrived later after these events and was aggressive and dragged her by the hair.  She fought back and he punched her in the face, head and eyes and then kicked her when she was on the floor.   In that statement to the police, she made no mention of Mr W touching her.

8. The Father has provided an affidavit dealing with these events and denies assaulting the Mother.  His affidavit material is supported by an affidavit of Mr W.  A neighbour of the Mother, Ms T and another neighbour of the Mother both provided affidavits, which are largely supportive of the Father’s version of events.

9. I have earlier recorded that there was in the material attached to the family violence report prepared by the police officers who were called, a summary in the following terms:-

   “Victim alleged to have been assaulted however details not forthcoming and inconsistent.  Very intoxicated. Also contradicting what witnesses had said. Victim would not allow us to take her to hospital to get her injuries assessed.  Attempted to take a statement however victim was uncooperative.  Victim was also very abusive to her 10 year old son, yelling at him and telling him this was his fault.”

10. It is, I think, sufficient to say that it is not possible to form a conclusive view about the events of that evening or to attribute blame without lengthy and detailed cross examination, which is not possible.

11. However, on the untested material available to me it would seem more probable that the Mother herself was the trouble maker rather than the others whom she accuses.  It seems she was very abusive of her son.  The probability would seem to be that Mr H had caused her injuries and that he was removed from the scene and placed in a taxi by Mr W.

12. Similarly, the events of 18 September 2005 are said to have occurred following a dispute between the Mother and the Father when the Mother alleges the Father swerved the car into her direction.  She alleges in her affidavit that the Father assaulted her and then tried to run her over in his car on the driveway.  The evidence of her boyfriend, Mr H, is that he saw the Father “aggressively swerve his car towards [the mother] while she was on the driveway”.  At that time, Mr H is reported as saying that the Child was outside on the front lawn watching these events.  What the Mother has said in her affidavit must be read against what she told Dr S, namely that after being punched in the face by the Father, “she fell onto the driveway and he then reversed the car as if to run over her”.  In contrast, the Child told Dr S that he was inside waiting for a pizza and saw what had happened through he window, suggesting he was inside the house and not outside as Mr H asserted.  The Child told the Family Consultant that his mother had fallen to the ground in front of the car and that his father had then tried to run her over. Again, it is clear there are different versions and it is not possible to come to any real conclusion.  The Father denied trying to drive over the Mother or assaulting her.

13. There is, in addition, evidence that following the break up with the Father, in about 1997 the Mother married a man who became a notorious criminal in New Zealand and there is evidence which suggests that when the Father was attempting, somewhat valiantly, to build a relationship with the Child, the Mother and her then husband appeared to have played a part in frustrating the contact which the Father was endeavouring to enjoy through the good services of Barnardo’s, who were acting as a contact centre.  Whilst only peripherally relevant, it may point to some attitude on the Mother’s part that she does not value the Child’s relationship with his Father.

14. I come then to consider the various grounds upon which the Mother contends the Court should refuse to make an order for the return of the child.

(a) The Father did not have “rights of custody” within the meaning of Regulation 4

Section 17 of the Care of Children Act 2004 (NZ) relevantly provides:-

“(1) The father and the mother of a child are guardians jointly of the child unless the child’s mother is the sole guardian of the child because of  … subsection (3).

(2) ……….

(3)If a child is conceived before the commencement of this Act, the child’s mother is the sole guardian of the child if the mother was neither:

(a) married to (or in a civil union with) the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child.

(b) living with the father of the child as a de facto partner at the time the child was born.”

25.The evidence of the Father and the Mother is in conflict.  In the circumstances of this case, I prefer the evidence of the Father, who says that he lived with the Mother at the time the Child was born.  The Father did not use the phrase “in a de facto relationship” but the evidence infers that.  I am satisfied that the Father and Mother were cohabiting, so that by operation of section 17, the Father and the Mother are joint guardians of the Child.  The Mother’s affidavit filed 14 November 2006 in paragraph 3, sworn at a time when the issue of the parties living together was not seen as being central to the issues, records, “I moved out with my two month old son and went to live with my parents”.  Her later affidavit filed on 15 December 2006, the day before the hearing, asserts that the parties never lived together as de facto partners.

26.Section 16(2) of the Care of Children Act 2004 (NZ) provides that the duties, powers, rights and responsibilities of a guardian of a child include determining questions about “important matters” affecting the child.  “Important matters” is, in turn, defined to include changes to the child’s place of residence, including changes of that kind arising from travel by the child.

27.Regulation 4(2) provides that rights of custody include “rights relating to the care of the child”.  Orders 1 and 2 of the Orders made on 4 December 2000 provide in those terms for the “child to live in his father’s care”.  The New Zealand High Court has said that rights of custody and rights of access are not mutually exclusive - see Gross v Boda 1995 NZFLR 49.

28.I do not accept the submission made on behalf of the Mother that a proper interpretation of Regulation 4(2) requires that the applicant have both rights relating to the care of the Child and a right to determine the place of residence in order to have “rights of custody” within the meaning of the Regulations. The provision in Regulation 4(2) of the word “and” is, in my view, clearly disjunctive.

29.In my view, having regard to those matters and to the fact that the Father had, pursuant to the orders of 4 December 2000, rights of access which he had been regularly exercising, then it is clear, in my view, that the Father had “rights of custody” sufficient to provide standing to bring an application under Regulation 14.

(b) The removal was not wrongful because New Zealand was not K’s country of habitual residence

1. The Mother’s contention is that because she unilaterally made the decision that Australia or some other country would be the place of residence for her and the Child, then New Zealand, as a consequence, is no longer his habitual country of residence since she left New Zealand in September 2006.  The argument seems to be predicated on the basis that the Mother was the sole guardian, but for reasons which I have earlier pointed out, I do not agree that is the case. 

2. The Mother’s counsel conceded that if the Father had “rights of custody”, then the Mother could not unilaterally change the country of habitual residence.  For reasons earlier set out, I am satisfied that the Father did have “rights of custody” so that the habitual residence defence must fail.

3. Since the effect of those findings is that the Child was wrongfully removed from New Zealand and retained in Australia on and from September 2006 and the Central Authority’s application was filed on 11 October 2006, then it follows that the Court must order the return of the Child, subject only to the provisions of Regulation 16(3) which provides for the Court, in its discretion to refuse to order the return of the Child in circumstances therein set out.  The relevant matters put forward by the Mother to support the exercise of the Court’s discretion against the order for the return of the Child are:-

(c) The Father has acquiesced (Regulation 16(3)(a))

1. The Mother contends that by consenting to the discharge of orders precluding the Child’s removal in June 2005 and by failing to raise an objection to the Child’s removal, the Father inferred an agreement for the Child to be taken anywhere, any time and for any length of time without notice.  Such an inference flies in the face of the Father’s continued time with the Child every second weekend.  It flies in the face of the Father’s statement to the Mother on the night in September 2006 that he would get his lawyer to take the Child from the Mother.  The Father had no knowledge of the Child’s departure from New Zealand until after the event and has acted promptly in agitating the New Zealand Central Authority to make a request of the Australian Central Authority to bring these proceedings.  In those circumstances it could not be said that the Father has acquiesced in the removal.

(d) Grave Risk (Regulation 16(3)(b))

1. The Mother contends that the Father has been violent over a period of time and that the Child’s exposure to that violence will put him at risk of psychological harm. There is, however, direct evidence of only two occasions, one being the events in September 2006, which have been dealt with in some detail, and the other being the events in September 2005, which have also been dealt with in detail.  I have already indicated that whilst it is difficult to express a concluded view, the probability is that the Mother was herself the cause of the violence in September 2006, although I include in the Mother's blameworthiness that of her boyfriend, Mr H.  The Mother’s version of events in September 2005 is unsatisfactory and I am unable to form a concluded view of what actually happened, although I have recorded my view that on the untested evidence the Mother and Mr H were more probably the trouble makers.

2. Dr S has expressed the view that the Child suffers from Post Traumatic Stress Disorder, arising out of the events in September 2006.  Dr S has, of course, qualified her report and expresses the view that it is not a concluded opinion because information which she required was not available to her, such as documentation in the way of police reports, psychometric assessments and the like.

3. The Child expressed concerns about going back to New Zealand because, inter alia, “Mum wouldn’t come back with me because she’s scared and I would be too scared of losing my Mum”.

4. The Report records that K displays signs of psychological harm from the incident in September 2006.  He did, however, not witness the beating but saw his mother in a distressed state with black eyes, bruising and loose teeth.  The Mother has, of course, told the Child that the Father inflicted those injuries, whereas the admittedly untested evidence tends to suggest it may have been Mr H.

5. The opinions of Dr S may be of limited assistance for a number of reasons:-

   ·All of her information was obtained from the uncorroborated evidence of the Mother and Child.

   ·Some of the Child’s statements smacked of coaching by the Mother (see report paragraph 6).

   ·Dr S expressed the view that the Mother has attempted to influence what the Child has said (Report page 8, paragraph 6).

   ·Dr S’s report itself records that it may be inaccurate and is not a concluded opinion because material such as police statements and other documents were not available and that enquiries which she believes are necessary were not able to be made.

   ·The Counsellor who prepared the Family Report said that at interview the Child was unable to distinguish between those things he had been told about by his mother and his own experiences.

6. Dr R has said that she supports Dr S’s diagnosis and she expresses the view that the Child’s return to New Zealand would very probably exacerbate the Post Traumatic Stress Disorder, particularly in the short term.  This is a significant risk.  There is no contrary expert evidence.   There is however a very recent school report (attached to the Mother’s affidavit filed 15 December 2006) which indicates the Child is doing very well indeed.  That is not material available to the psychologists and would appear to be inconsistent with the performance of a child with Post Traumatic Stress Disorder.

7. Whilst it seems clear that K saw his mother in a state which may well have caused him distress, he did not actually witness many of the events and his reaction may be based largely upon what his mother has told him, rather than what he saw on that evening.  His recent school performance indicates his resilience, so that any exacerbation of his problem may well be short lived.  I don’t think the risk can said to be “grave” in all the circumstances.

8. As has earlier been recorded, it is very difficult to form a concluded view, but I lean towards the view that the problems in September 2006 were caused by persons other than the Father and probably in some respects by the Mother.  If the Child is to reside with the Mother in Australia, then although she will have her family nearby, it is (assuming that the attribution of part of the blame at least to the Mother is correct) at least possible that the Child may be exposed to further problems here. 

1. If the Child is not returned to New Zealand, then it will mean that the Father has to commence proceedings in Australia and pursue those proceedings here.  It would be a difficult and expensive task. Australian Courts would be less able to have proper regard to the implications of the Child’s Maori heritage.  All the witnesses, except the Mother, to the two serious events of violence which have been alleged are in New Zealand. 

2. The New Zealand legal and health systems are both sophisticated.  I am quite certain that arrangements could be made to ensure that the Child gets the best treatment to assist him and to ensure that both he and the Mother are protected in every way possible from any further violence, if he were to be returned to New Zealand.  The Mother’s most recent affidavit indicates that she does not anticipate being able to return to New Zealand but I have doubts that will be the situation.

3. The matter is difficult and worrying but in the end result and having proper regard to the best interests of the child, even if I am wrong about the "grave risk" I would not exercise my discretion by way of refusing to order the return of the Child to New Zealand (as opposed to an order for return to the Father) so that the Courts of New Zealand can determine the parenting issues after a full hearing of the facts.  I understand that the Father’s mother, with whom the child has a good relationship, will, if required, be prepared to come to Australia to accompany the Child to New Zealand.

(e) The Child objects to being returned (Regulation 16 (3)(c))

1. There is, I think, no dispute that the Child has expressed a desire not to be returned to New Zealand.  So much is recorded in the Family Report (par 2) and in the reports of Dr S and Dr R.

2. The Family Reporter, Ms G, however, has expressed the opinion, which I accept, that “He is not of a sufficient age or level of maturity for his wishes alone to determine what should happen…”.  His own expressions of objection appear to be significantly affected by his Mother’s views (see report of Dr S at paragraph 6) even though Dr S expressed the view that it would be appropriate for this Court to take his views into account.

3. I am not satisfied that the Child has attained an age or degree of maturity at which it is appropriate to take into account his views.

4. Even if I am wrong about that, I would not in the exercise of my discretion refuse to order his return on that basis.

5. It must be remembered, of course, that the purpose of this application is not to have this Court determine whether the Child should live with the Father or the Mother or in New Zealand or in Australia, but simply to return the Child to New Zealand where the New Zealand Courts will be able to determine, inter alia, whether the Mother should be permitted to bring the Child to live in Australia.  The New Zealand Courts can fully evaluate the issue of violence.  Having regard to the various matters which I have set out, I am not prepared, in the exercise of my discretion, to refuse to order the return of the Child and accordingly, I propose to make orders that the Child be returned to New Zealand. 

6. I direct the Central Authority to bring in short minutes of order by 10.00 am on 19 December 2006 to give effect to my reasons.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele

Associate: 

Date:  19 December 2006