Director-General, Department of Community Services & Timms (aka Black)
[2008] FamCAFC 132
•27 August 2008
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES & TIMMS (AKA BLACK) | [2008] FamCAFC 132 |
| FAMILY LAW - CHILD ABDUCTION – Hague Convention – Appeal from a single judge of the Family Court – where mother retained child in Australia without father’s consent – where father sought return of child to New Zealand – where Central Authority appealed against trial judge’s findings as to grave risk and the exercise of his discretion not to return the child – whether trial judge erred in finding that the effect of a return order would be to return the child to the father rather than to the jurisdiction of the Convention country – whether trial judge erred in finding the child was at grave risk of harm if returned to New Zealand – whether the trial judge erred in finding that it would not be possible to impose conditions that would safeguard the child or that such conditions would be too onerous for the New Zealand community – whether mother able to pursue residence orders in New Zealand – appeal successful in relation to issue of grave risk. FAMILY LAW - CHILD ABDUCTION – Hague Convention – where mother filed a Notice of Contention challenging trial judge’s findings as to habitual residence –– whether mother had agreed to father having sole custody of child – whether habitual residence of child had therefore changed from Australia to New Zealand – appeal dismissed on basis of Notice of Contention. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16 |
| Murray v Director, Family Services, ACT (1993) FLC 92-416 Director-General, Department of Community Services & Crowe & Crowe (1996) FLC 92-717 DP v Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 Zafiropoulos & Secretary of the Department of Human Services State Central Authority (2006) FLC 93-264 Fox v Percy (2003) 214 CLR 118 |
| APPELLANT: | Director-General of the Department of Community Services |
| RESPONDENT: | Ms Timms (aka Black) |
| FILE NUMBER: | SYC | 4376 | of | 2007 |
| APPEAL NUMBER: | EA | 121 | of | 2007 |
| DATE DELIVERED: | 27 August 2008 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Finn & May JJ |
| HEARING DATE: | 5 February 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 September 2007 |
| LOWER COURT MNC: | [2007] FamCA 1170 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Cleary |
| SOLICITOR FOR THE APPELLANT: | Department of Community Services |
| COUNSEL FOR THE RESPONDENT: | Mr Tockar |
| SOLICITOR FOR THE RESPONDENT: | James Papas Solicitors |
Orders
That the appeal be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Director-General of the Department of Community Services & Timms (aka Black) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 121 of 2007
File Number: SYC 4376 of 2007
| Director-General of the Department of Community Services |
Appellant
and
| Ms Timms (aka Black) |
Respondent
REASONS FOR JUDGMENT
Introduction
In this appeal the Central Authority asks the Court to set aside orders of Le Poer Trench J made on 17 September 2007 dismissing an application for the return of the child (“[K]”) to New Zealand pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The Regulations give effect to Australia’s obligations under the Hague Convention on Civil Aspects of International Child Abduction (1980) (“the Convention”). The mother resists the appeal and seeks to maintain the trial judge’s orders if necessary on the basis of a notice of contention.
Background
The child, K, was born in December 2000 of a de facto relationship between a New Zealand born father and an Australian born mother. A second child was born of that relationship in June 2004. The family had lived together in Australia until the father left Australia and went to New Zealand at the beginning of January 2006 to avoid legal proceedings in Australia. He took K with him with the mother’s agreement. The mother and younger child also travelled to New Zealand in early 2006 but left again in mid-2006 leaving K with the father. With the father’s agreement, K travelled to Australia in April 2007 for what was agreed by both parents to be a holiday, but was then retained in Australia by the mother. The Central Authority then commenced proceedings in Australia under the Regulations for the return of K to New Zealand.
The Central Authority provided in its application the following details concerning the child’s custody and retention:
Details Concerning the Child’s Custodian
· Mr [T], the father of the child, has rights of custody over the child by reason of the following factual and legal circumstances:
· Mr [T] is the father of the child.
· Pursuant to section 17 of the Care of Children Act 2004 Mr [T] is a guardian of the child as he was living with the child’s mother when the child was born. Pursuant to the same legislation, Mr [T] also has the right to determine the child’s place of residence.
Details concerning the child’s retention
The following information has been ascertained from the application submitted by the father:
· The child [K] was living with her father, the applicant under the Convention, since approximately January 2006. The child’s mother, the Respondent to this application had agreed that [K] could be in her father’s day to day care and had signed a letter to Work and Income New Zealand confirming this fact so the father could obtain benefits for her.
· The father claims that [K] came to Australia for a 3 week holiday from 6 April 2007 to 28 April 2007. [K] traveled [sic] to Australia as an unaccompanied minor and was due to return to New Zealand with a mutual friend of the parties, Mr [R].
· On or about 26 April 2007 the Respondent told the father that she would not return K to New Zealand.
At the hearing before the trial judge the Central Authority asserted that K was habitually resident with her father in New Zealand and during a pre-arranged holiday in Australia with the mother, the mother wrongfully retained the child.
In his judgment, his Honour noted first a factual dispute about habitual residence. The mother asserted that the child was residing temporarily in New Zealand pursuant to an agreement between the mother and the father reached in late 2005 or early 2006.
Secondly his Honour noted that the mother further opposed the application on the basis that to return the child to New Zealand would expose her to a grave risk of physical or psychological harm and/or place her in an intolerable situation.
Thirdly the mother asserted that the child objected to being returned to New Zealand although that ground was ultimately not pressed before his Honour.
The factual dispute between the parties as it ultimately unfolded before his Honour was as follows:
a)The mother asserted that in December 2005 the father had been charged with drink driving offences in Australia. The parties at that time had been living in a de facto relationship for about 13 years and had two children, K and a younger child T born in 2004. Shortly after the charges the father made plans to travel to New Zealand in order (it appears to be conceded) to avoid the consequences that would have inevitably followed the drink driving charges had they proceeded to court.
b)The mother asserted that the father asked her to let him take K with him to New Zealand so that he could qualify for social security upon his arrival, and the mother agreed to him doing so. The mother signed the documents which were necessary for this to occur.
c)The mother asserted that the father promised her he would stop drinking and smoking marijuana if she joined him, and the mother agreed to follow him to New Zealand to see if a reconciliation was possible. If it was not, she was to return to Australia with both children.
d)K and the father travelled to New Zealand and shortly afterwards in early 2006 the mother and T followed. They resided with the father and K.
e)The mother asserted that not long after her arrival in New Zealand there was an altercation between the parties after which she told the father she was returning to Australia.
f)The mother said the father asked her to leave K with him until the school year finished.
g)The mother left New Zealand during the May school holidays of 2006 and took both girls to Australia. Although she booked K into a school in Sydney she then later spoke to the father and agreed to return K to New Zealand. The mother said this was on the basis that at the conclusion of the school year K would return to Australia to the mother to reside permanently with her.
h)The mother asserted that in late January 2007 she spoke to the father and asked about the return of K and the father asked to look after her for a bit longer.
i)The mother asserted that in mid-February in a telephone conversation the father then informed her that he was not going to return K on a permanent basis but that the mother could visit or that K could return to Australia for the school holidays as long as the mother promised to return her to New Zealand at the conclusion of the holidays.
j)The mother asserted that initially she refused to give a false promise to return K if she came back to Australia, but finally lied to the father that she would return her, in order to get the child back to Australia.
k)The mother alleged that the father had convictions for driving offences including driving while disqualified and that he was violent. The violent behaviour complained of was heavy drinking, physical violence to the mother occasioned at the end of the relationship and threats to harm the mother and children.
The father asserted that the parties separated just before he left Australia and reached an agreement about the care of the two children. He asserted that they agreed that K would be in his day to day care and would accompany him to live in New Zealand. T would continue to live in her mother’s day to day care. He contended that corroboration of this was provided by the letter from the mother to Work and Income New Zealand confirming that he had the day to day care of K.
The father conceded that the mother went to New Zealand to see if a reconciliation could be effected but when that did not work she returned to Australia.
He agreed that the child spent the May 2006 school holidays with her mother in Australia, but contended that she was returned on the basis that she would remain in New Zealand with him.
The father agreed that the mother asked for K to visit during the May 2007 holidays and as she promised to return her he agreed to K spending three weeks in Australia to coincide with the New Zealand school holiday period.
He denied any agreement that he would return K at the end of the school year 2006 and contended that following her six-week visit to her mother in May 2006 K was to return to New Zealand to live permanently with him. This, he contended, was all consistent with the original agreement reached when he left Australia that K was to be permanently in his care.
His Honour had corroborating evidence of the mother’s allegations including a document produced by the Ministry of Social Development (Child Youth and Family) … in New Zealand and a document marked “Child Abuse Assessment” referring to a notification received 23 November 2006 in respect of an alleged assault on another child of the father whilst K was living with him. The latter report indicated that the Ministry of Social Development had no concerns about K’s safety with her father but reported a history of violence by the father towards his partner. The report writer also expressed concern at the fact that K had been living in a home with her father and mother that had a high level of verbal violence and that K would have been witness to the events that led to her step-brother being assaulted by the father. The report writer concluded by indicating that it was likely that K had been exposed to violence over time.
Police records for the father indicated a history of driving offences and violence exhibited by the father since about 1998. His Honour noted (at paragraph 41 of his reasons) that the police reports and the record for the father disclosed:
…prima facie that the father is extremely violent, abuses alcohol and has no regard for the law of the land. He has been convicted of driving a car whilst he was disqualified from driving. He has been convicted of driving a car whilst affected by alcohol. He has been convicted of driving an unregistered and uninsured motor vehicle. These convictions suggest the father would pose a risk to [K] unless he had completely rehabilitated.
His Honour further noted the receipt in evidence of letters from Work and Income New Zealand and other documents which established that the mother had represented to the New Zealand authorities at the time that K travelled to New Zealand with the father that K would be in the sole custody of the father from the time that he left Australia to take up residence in New Zealand.
Reasons of the trial judge
On the issue of habitual residence his Honour set out the law and then stated that whether or not K’s place of habitual residence changed at the time she left Australia to travel to New Zealand with her father was primarily a question of fact to be decided by reference to all the circumstances of the case. His Honour identified the issue as being one which he had to decide whether K’s parents agreed, with a settled intention, for her to reside habitually in New Zealand, or alternatively if he found the father was given sole rights of custody, whether the intention of the father was to reside habitually in New Zealand. Having reviewed the authorities, about which there is no complaint on this appeal, his Honour noted that if the objective facts established that the mother and father intended K to live with the father in New Zealand for an indefinite period then the law would support a conclusion that K’s place of habitual residence was then New Zealand. In the absence of such a conclusion, the law would support a finding that her habitual residence did not change from Australia unless she came into the sole custody of the father.
His Honour found that there was no issue that immediately before the father and K left Australia for New Zealand the child’s place of habitual residence was Australia as it was the habitual residence of both parents who were both exercising rights of custody. The issue his Honour identified was whether the agreement between the parents for the father and child to leave Australia for New Zealand effected a change of habitual residence.
His Honour noted that if there was no agreement to change K’s place of habitual residence then the notion of “rights of custody” was of fundamental importance as to where K was habitually resident. If the agreement provided the father with sole rights of custody then her habitual residence would change with the father. If the rights of custody remained with both parents, then her place of habitual residence would remain Australia in the absence of an agreement between her parents.
In determining the dispute his Honour observed that the evidence of the mother and father was in many ways “diametrically opposed” and it had been necessary for him to look at independent sources of evidence to ascertain what the true position might be on the civil standard of proof.
His Honour referred particularly to the evidence of Mr R (previously a mutual friend of the parties whose evidence was largely directed to the father’s alcohol consumption and violent behaviour), documents tendered from the New South Wales police department, the report on child abuse from New Zealand and the correspondence from Work and Income in New Zealand.
Ultimately his Honour found that the habitual residence of K changed at the time she left Australia to reside in New Zealand (paragraph 80 of his Honour’s reasons for judgment). He found that, at that time, the mother agreed to the father exercising sole custody of K and, at that time, the father commenced to exercise sole custody. He found that K’s habitual residence therefore changed with the father’s, from Australia to New Zealand.
His Honour found that, notwithstanding the mother later joined the father and resided with him for between three and five months, K’s habitual residence did not change; nor did he find the trip to Australia to spend the school holidays with the mother in early 2006 changed her habitual residence. He further noted that there was no issue by the mother that when K came to Australia in 2007 it was for the purpose of a holiday which was to conclude on 28 April 2007.
His Honour then turned to the question of whether the mother had established grave risk. Referring to both independent evidence and the father’s various admissions, his Honour found that the evidence established as a matter of fact that K would be at grave risk of being exposed to physical and emotional harm if she returned to her father in New Zealand. He noted that it was most unlikely that the mother would be able to return to New Zealand to live, visit or pursue residence orders for K. He noted the mother did not work, had four of her children living with her and was supported by a pension.
His Honour concluded that to send K back to live in the sole care of her father would further imperil K. This was because despite concerns raised about her safety, the evidence suggested the New Zealand authorities had no real concern about her parenting at the hands of her father and this was in a situation where the mother could not live close by to monitor her living arrangements.
Finally, his Honour considered whether, notwithstanding the findings of grave risk to K, he should nevertheless in his discretion order her return upon conditions.
He concluded that it would not be possible to impose conditions that would safeguard K or alternatively that the conditions he would impose would be too onerous to the New Zealand community, even if they were to agree to them. He concluded that:
·the father would have to subject himself to 24 hours per day supervision in order to satisfy any meaningful conditions;
·he was concerned that the father was using alcohol to excess;
·he was concerned based on the evidence of Mr R that the father was using marijuana;
·he was concerned that the father continued to drive motor vehicles while unlicensed;
·he was concerned generally that the father had an anti-social personality which was enlivened by the use of alcohol or emotional circumstances;
·the father appeared to demonstrate a lack of respect for authority or the law of the land wherever he lived; and
·the father provided a very poor role model for K.
His Honour concluded that any proposed conditions would have to ensure that the mother could prosecute a case for custody of K in New Zealand. This would mean the mother would have to be assisted financially to travel to New Zealand, be able to accommodate herself during a hearing or hearings and have legal aid made available for her or alternatively have the father fund her legal expenses. His Honour noted that all of these seemed quite unlikely to be able to be met by the New Zealand authorities. For those reasons his Honour dismissed the application of the Central Authority for K’s return.
Grounds of appeal
Three grounds of appeal were relied upon:
(1)That his Honour erred in finding that the evidence established that [K] would be at grave risk of being exposed to physical and emotional harm if returned to her father, as opposed to the jurisdiction of the Convention country;
(2)Against the weight of the evidence his Honour erroneously found that the mother had established there was a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm which could not be ameliorated by imposing appropriate conditions;
(3)If the grave risk ground was established then his Honour wrongly exercised his discretion to refuse the application to return the child under reg 16(1) of the Regulations.
As mentioned earlier, the respondent mother resists the appeal and filed a notice of contention challenging his Honour’s findings as to habitual residence.
The relevant legislation
Regulation 16 of the Regulations provides:
16 Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A) For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b) the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c) the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d) the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e) at the time of the child’s removal or retention, the person, institution or other body:
(i) was actually exercising the rights of custody (either jointly or alone); or
(ii) would have exercised those rights if the child had not been removed or retained.
(2) If:
(a) an application for a return order for a child is made; and
(b) the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c) the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment; the court must, subject to subregulation (3), make the order.
(3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child’s return:
(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) each of the following applies:
(i) the child objects to being returned;
(ii) the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
Discussion
Did his Honour err in finding grave risk was established by the return of the child to the father rather than to the jurisdiction of the Convention country?
His Honour’s conclusion that the defence of “grave risk” had been established rests on four planks.
First, as part of his Honour’s assessment of the “grave risk” defence, he made findings about the father’s behaviour.
Secondly, his Honour made a finding at paragraph 98 of his reasons that:
It seems most unlikely that the mother would be able to return to New Zealand to live, visit or pursue residence orders for [K]. The mother does not work and has four of her children living with her. It is reasonable to assume from a number of facts in this case that the mother is supported by a pension.
Thirdly, his Honour appears to have drawn the inference from the first and second findings that a return of K to New Zealand would inevitably result in the child being returned to the father’s care.
Finally, given his findings as to the apparent lack of concern by the New Zealand authorities about the father’s parenting of K and where his supports were blind as to his parental shortcomings, his Honour concluded that a return to New Zealand, and inevitably to her father’s care, would constitute a grave risk and place the child in an intolerable position.
Counsel for the appellant submitted that his Honour erred in effectively asking the wrong legal question, namely whether the child would be at grave risk of harm if returned to her father, rather than asking the question: “Has it been established that there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation?” That is, on the facts of the case, is there a grave risk that the return of the child to New Zealand would expose the child to harm?
The appellant’s counsel submitted the return would be to the jurisdiction of New Zealand and not automatically to the father. It would then be for the New Zealand authorities to make future decisions in relation to the child. She submitted that the mother or father could institute family law proceedings in New Zealand once the child returned to finally decide matters relating to the child’s residence and contact, and that the mother had given evidence that she would commence proceedings in the Family Court of New Zealand if the child were returned.
In Murray v Director, Family Services, ACT (1993) FLC 92-416 the Full Court (Nicholson CJ, Fogarty and Finn JJ) said at page 80,259:
New Zealand has a system of family law and provides legal protection to persons in fear of violence which is similar to the system in Australia.
It would be presumptuous and offensive in the extreme, for a court in this country to conclude that the wife and the children are not capable of being protected by the New Zealand Courts or that relevant New Zealand authorities would not enforce protection orders which are made by the Courts.
In our view and in accordance with the views expressed by this Court in Gsponer's case [(1989) FLC 92-001], the circumstances in which Regulation 16(3) comes into operation should be largely confined to situations where such protections are not available. Similar views have been expressed by the courts of other countries eg Segal J in the Superior Court of New Jersey in Tahan v Duquette (24/6/92 unreported); In Re: A (A Minor) [(1988) 1 Fam.L.R. 365]; Re: Evans (Court of Appeal England, 20/7/88 unreported).
In Director-General, Department of Community Services & Crowe & Crowe (1996) FLC 92-717 the Full Court (Barblett DCJ, Ellis and Lindenmayer JJ) said at page 83,642:
C clearly has symptoms of anxiety and insecurity as one would expect but there was no evidence before the trial Judge from which he could infer that a grave risk of psychological harm to the necessary degree would occur if she were returned to New Zealand within the meaning of reg.16(3)(b), i.e. to enable the New Zealand courts to resolve the merits of any dispute as to where and with whom she should live.
As Lord Donaldson of Lymington MR. said in C v C (Abduction: Rights of Custody) (1989) 1 WLR 654:-
“I would only add that in a situation in which it is necessary
to consider operating the machinery of the Convention, some psychological harm to the child is inherent, whether the child
is or is not returned. This is, I think, recognised by the words
“or otherwise place the child in an intolerable situation” which cast considerable light on the severe degree of psychological harm which the Convention has in mind. It will be the concern of the court of the state to which the child is to be returned to minimise or eliminate this harm and, in the absence of compelling evidence to
the contrary or evidence that it is beyond the powers of those courts in the circumstances of the case, the courts of this country should assume that this will be done. Save in an exceptional case, our concern, i.e., the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the other country - Australia in this case - can resume their normal role in relation to the child.”
Nevertheless, the consequences of the return cannot be ignored. In DP v Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 the High Court in the majority judgment of Gaudron, Gummow and Hayne JJ said at paragraphs 65 and 66:
As we have earlier pointed out, the return contemplated in this case was in circumstances where there would be a judicial determination about custody. That is not always so. Secondly, while it may be right to say that return is to a country, not a place or a person, the application of reg 16(3)(b) requires consideration of what are said to be the consequences of that return. That is essentially a question of fact which will fall for decision on the evidence that is adduced in the proceedings. No doubt it is necessary to bear in mind not only that the person opposing the return carries the onus of proof, but also the way in which the proceedings are conducted both by the person opposing return and by the Central Authority.
If, as was the case here, upon return of the child there will be a judicial determination of questions of custody and access, it will probably often be the case that assertions of risk of exposure to harm will not be established. But the bare fact that there will be such a judicial determination in the country of return does not mean that reg 16(3)(b) can have no operation. Cases in other jurisdictions concerning the possible return of a child to a sexually predatory or violent parent illustrate why that is so. The fact that there will be proceedings between the parties in the country of habitual residence does not relieve the Australian court of its obligation to give effect to the whole of the Regulations including, where applicable, the provisions of reg 16(3)(b). (original emphasis)
In the same case, Kirby J (dissenting) said at paragraph 136:
…Many cases point to the need to consider the practical outcomes of the order for return. It is on this basis that considerations of a "grave risk" of physical or psychological harm or otherwise "intolerable situation" arise. Thus, as a matter of practicality, a return that might expose the child, even briefly, to intolerable physical or sexual abuse, would enliven the exception. But in the ordinary case, the scheme of the Regulations (and of the Convention) envisages that it will be for the authorities (judicial or administrative) of the country of the child's habitual residence to determine the implications for custody and residence orders of lesser risks and what is required by other situations. (footnote omitted).
Thus his Honour was entitled to consider more than the fact that the New Zealand legal system provided the capacity for a judicial determination about the consequences of the child’s custody upon a return. He was entitled to consider the “consequences of that return” which the High Court (supra) said was a question of fact.
The issue of whether the facts entitled his Honour to make a finding of grave risk in this case remains to be determined under grounds (2) and (3). Under ground (1) the appellant asserts that his Honour erred in asking the question whether the child would be at grave risk of harm if returned to the father, rather than asking the question whether it had been established that there was a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. That is, on the facts of the case, was there a grave risk that the return of the child to New Zealand would expose the child to harm.
As we have indicated, his Honour was entitled to consider more than the fact that the New Zealand legal system provided the capacity for a judicial determination and to look at the practical consequences of the return. In doing so, his Honour considered that the only practical outcomes of a return were that the child would be returned to the father, that the mother would be unable to pursue legal remedies in New Zealand, and that living with the father would expose the child to a grave risk of physical or psychological harm or otherwise place her in an intolerable situation.
Whether his Honour was correct in these findings falls to be determined under the other grounds of appeal which deal with the issues of exposure to grave risk of harm and the exercise of discretion to order a return. Dealing with this ground however, we do not consider that his Honour misunderstood the appropriate question, and are satisfied that his Honour well understood that he was considering a return under the Convention, rather than a return to the father, albeit applying what he saw as the practical ramifications of such a return. Accordingly, we do not consider that ground (1) has any merit.
Did the evidence enable the trial judge to make a finding that a return to New Zealand would expose the child to a grave risk of harm?
Regulation 16(3)(b) mirrors the provisions of Art 13(b) of the Convention which provides:
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
…
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The respondent mother bore the onus of proving, on a balance of probabilities, that the return of the child to New Zealand pursuant to the Regulations would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation.
The proper interpretation of reg 16(3) has been settled by the majority judgment of the High Court in the cases of DP v Central Authority; JLM v Director-General, NSW Department of Community Services (supra at paragraph 38) where Gaudron, Gummow and Hayne JJ said:
[40] So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that "there is a grave risk that [his or her] return ... would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation". If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced. (original emphasis)
In the same judgment the majority dismissed the proposition that reg 16(3)(b) and reg 16(3)(d) are to be narrowly construed.
"Narrow construction"?
[41] In the judgment of the Full Court … [e]xactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in "an intolerable situation". That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
[42] Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description "grave". Leaving aside the reference to "intolerable situation", and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
[43] Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
[44] These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a "narrow" rather than a "broad" construction. There is, in these circumstances, no evident choice to be made between a "narrow" and "broad" construction of the regulation. If that is what is meant by saying that it is to be given a "narrow construction" it must be rejected. The exception is to be given the meaning its words require.
[45] That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return. (original emphasis, footnotes omitted)His Honour was required to make an inquiry and prediction as to exposure to risk and to be satisfied that the respondent mother had satisfied the onus of establishing the defence under reg 16(3)(b).
In this case the trial judge reached the conclusion that grave risk of harm had been established. His Honour’s conclusion was based upon his interpretation of untested material, which we as an appellate court find ourselves in as good a position as the trial judge of determining for ourselves whether the conclusions reached by the trial judge were erroneous. There is no particular advantage that the trial judge has over the appellate court in these circumstances (Zafiropoulos & Secretary of the Department of Human Services State Central Authority (2006) FLC 93-264 at page 80,507).
An appellate court within the constraints marked out by the nature of the appellate process is obliged to conduct a real review of the trial and of the judge’s reasons. Subject to bearing in mind that they have neither seen nor heard the witnesses, appellate courts are not excused from the task of weighing conflicting evidence and drawing their own inferences and conclusions (Fox v Percy (2003) 214 CLR 118).
The evidentiary standard to be applied was a finding on the balance of probabilities. The task of his Honour in dealing with the matter as he did “on the papers”, was to look at the versions of the parties, find the common ground, note the areas of conflict and identify the inherent probabilities.
His Honour’s analysis of grave risk commenced at paragraph 83 of the reasons for judgment. He referred to the evidence relied upon by the mother to establish the grave risk:
· The evidence of Mr R regarding the father’s use of alcohol (paragraph 85 of the reasons for judgment);
· The admission by the father that he has had a couple of relapses into the use of drugs and alcohol (paragraph 86);
· The admission by the father that he has been sentenced in New Zealand for a “further drink / driving charge” (paragraph 87);
· The evidence of Mr R that he saw the father drive a motor vehicle in New Zealand notwithstanding the statement by the father to Mr R that he had lost his licence (paragraph 88);
· The threats made by the father to Mr R about the violence he proposed to visit upon the mother which illustrate a high level of violence and severe lack of parental responsibility (paragraph 89);
· In 2005 the father being twice charged with serious driving offences both of which involved the use of excessive alcohol (paragraph 90);
· A lengthy history of aggressive and violent behaviour by the father evidenced in the material tendered in evidence being documents produced by the NSW Police (paragraph 91);
· There were warrants outstanding for the father’s arrest in Australia and it seemed likely he would be sentenced to a period of imprisonment if he returned to Australia (paragraph 92);
· After K was retained by the mother the father “began drinking and became quite despondent” (paragraph 93);
· The concern about the nature of the relationship between the father and his son C (paragraph 94);
· The concern of the investigator in the “Child Abuse Report” that K would have been exposed to the events leading up to the violence between the father and C (paragraph 95); and
· The concern raised by the investigator in the “Child Abuse Report” that the father’s supporters did not blame him or hold him accountable for the assault on his son C (paragraph 96).
His Honour then said at paragraph 97:
I accept that the evidence highlighted by the mother does establish as a matter of fact that [the child] would be at grave risk of being exposed to physical and emotional harm if returned to her father in New Zealand.
The appellant’s submission, in summary, is that his Honour did not fulfil the task of looking at the versions of each of the parties, finding the common ground, noting the areas of conflict and identifying the inherent probabilities. Instead, his Honour failed to properly assess the risk of harm and merely chose some portions of the evidence whilst ignoring areas of conflict and inherent probabilities. The major and most obvious evidence that his Honour failed to consider and weigh up was the mother’s willingness to agree to K going to New Zealand with the father and then allowing her to remain there in his care.
Taking the four planks leading to his Honour’s conclusion of grave risk we first turn to the findings his Honour made about the father’s character and behaviour. The matters that his Honour did not take into account are as follows:
a)The mother entered into an agreement with the father to allow the child to travel to New Zealand with him. Although counsel for the respondent submitted that his Honour was not entitled to come to the conclusion that legally the father was exercising rights of custody, nevertheless he conceded in written submissions that:
16. (ix)This evidence is consistent with the evidence of the respondent that she was agreeable to the father taking [the child] to New Zealand in December 2005 so that he could obtain “social security” while he had the care of [the child] in New Zealand;
16. (x)It is submitted that the letters from “Work and Income” cannot be construed as signifying an agreement by the respondent to surrendering “sole custody” of [the child] to the father. At most, they simply record the agreement by the respondent that the father would have day-to-day care of [the child] for a temporary period; (references omitted)
We will return to the issue of the correctness of his Honour’s finding that the agreement did amount to rights of sole custody but for the purposes of this issue it is sufficient to say that there was a concession that the mother had agreed that K would return with the father to New Zealand and he would have her day-to-day care. This was not a matter to which his Honour had regard when considering grave risk.
b)Once in New Zealand, the mother agreed to K remaining in the father’s care when she returned with the other child to Australia.
c)The father sent K to holiday in Australia with the mother in the May 2006 school holidays. The mother voluntarily returned K to the father’s care.
d)At no time did the mother:
i)initiate proceedings for K’s residence or to change the care arrangements;
ii)raise any concerns about the father’s care until her Response to the application for her return under the Convention;
iii)make any notification to New Zealand authorities that K was at any risk of harm in the father’s care.
e)The father’s 2005 convictions were earlier in time to K being placed in the father’s day-to-day care with the consent of the mother;
f)The warrants for the father’s arrest in Australia as a result of driving charges were known to the mother and indeed formed the reason for the father’s departure from Australia with K with the mother’s consent;
g)Albeit there were some instances of the father’s behaviour that occurred during the period K was living with her father, the character flaws identified by his Honour constituted by the father’s drinking, driving offences and aggressive behaviour were all matters known to the mother when she consented to K travelling to New Zealand with the father and remaining in his care between December 2005 and April 2007.
None of these relevant matters were mentioned by his Honour nor weighed in the consideration of whether a return under the Convention constituted a grave risk of exposure to harm to K.
Further, his Honour accepted the evidence of Mr R “on the papers” when part of his evidence at least was denied by the father, who said in an affidavit annexed to the affidavit of [Department of Community Services staff member Ms P] sworn 4 September 2007:
5.The matters set out in Mr [R’s] affidavit, including comments I am meant to have made, are pure fabrication. I have never threatened to cut off [the mother’s] nose, threatened to kill [the mother], threatened to pay money to rape her, or threatened to put a hammer through [the mother] and the children.
6.Mr [R] and [the mother] are now in a relationship, and I believe they have simply made up these statements in an effort to try and discredit me, so that they can live together as a couple in Australia. I would never make any such threats against [the mother] or the children.
His Honour did not refer to the father’s denial of Mr R’s evidence and appears to have accepted Mr R’s evidence saying in paragraph 89 of the reasons for judgment:
The threats made by the father to Mr [R] about the violence he proposed to visit on the mother illustrate a high level of violence and severe lack of parental responsibility.
It is not only his Honour’s acceptance of contested evidence without indicating his reasons for doing so, but also his failure to weigh relevant matters concerning the mother’s behaviour and acquiescence to the child living with the father that support the appellant’s submissions that his Honour did not properly weigh up the competing matters relevant to grave risk.
The second plank of his Honour’s conclusion was that it was unlikely that the mother would be able to return to New Zealand to “live, visit or pursue residence orders for [K]. The mother does not work and has four of her children living with her. It is reasonable to assume from a number of factors in this case that the mother is supported by a pension.” (emphasis added)
The mother filed an affidavit in the proceedings but did not say that it would not be possible for her to commence proceedings. The written submissions of the respondent mother to his Honour at trial also do not assert that it was not possible for the mother to contest K’s residence in New Zealand. Furthermore, in oral submissions counsel said the following (at page 30 of the transcript):
Mr Tockar:She wouldn’t be washing her hands of it, but she has real difficulties in returning with the child because of the other children but my understanding is that she certainly would institute action in the New Zealand courts in order to obtain parenting orders and to obtain a relocation order. Perhaps that is something that the Court peripherally can take into account and look to the future and consider, well, what are the probabilities, and I know that this is something that has been considered with Hague matters, is that where you have matters where a return is ordered, where almost, inevitably, there will be a reversal of that because of the orders that will be made in the country to which the child is returned, is that there should be a preliminary set in looking at the child’s best interest, and perhaps getting the parties to mediation and sorting the matter out in the country to which the child has been abducted. (emphasis added)
And further, at page 32 of the transcript, the following exchange between his Honour and counsel took place:
His Honour: I’m really focussing on your client. I mean if [K’s] in New Zealand and your client’s proposing to try and do something about pursuing residence for [K] through the New Zealand courts, how is she going to do that?
Mr Tockar:My understanding is that she certainly could commence proceedings without having to be physically present in New Zealand and that for the trial, then she would go across for a temporary period and for any assessment that to be done and for the hearing of evidence.
It is clear from these passages that the mother had assistance from her parents for the purpose of commencing legal proceedings in Australia and that such assistance would extend to the commencement of legal proceedings in New Zealand. The mother’s concessions make it difficult to see how his Honour reached a conclusion that the mother would not be able to return to New Zealand to pursue residence orders for K. Such a finding would need to be made on the balance of probabilities and the mother bore the onus of establishing it.
We agree with the submissions of counsel for the appellant that there was no basis on which his Honour could have concluded on the balance of probabilities that it was unlikely that the mother would be unable to pursue residence orders for the child in New Zealand.
While we consider that his Honour erred in concluding that the mother could not on the balance of probabilities pursue a residence case in New Zealand for K, we acknowledge that his Honour was concerned with the fact that the immediate arrangements would involve K returning to New Zealand and in all likelihood living with her father. That led his Honour to conclude that, if that occurred, the apparent lack of concern by the New Zealand authorities about the father’s parenting of K and the fact that his supports in New Zealand were blind to his parental shortcomings would constitute a grave risk and place the child in an intolerable situation.
To the extent that his Honour relied upon his assessment of the father’s shortcomings without weighing up the mother’s acquiescence in allowing the child to remain with the father for a significant period as forming a basis upon which to find grave risk of exposure to harm existed, we have already pointed out the problems in such a finding. There were however, in addition, other matters that his Honour did not address which could have ameliorated any concern about grave risk.
A Hague Report was prepared by a family consultant in the Sydney registry of the Court and dated 28 August 2007. The report was ordered to assist the Court in determining whether K (a) objected to returning to New Zealand; and (b) had attained an age and degree of maturity at which it was appropriate to take account of her views.
The reporter met with K (then 6 and a half) and discussed issues with her. In particular, the reporter said:
5.…She expressed no fear of returning to New Zealand or of her father and in fact was happy that her mother had, she said, told her that she could go and stay with her father every school holiday. …
…
7.In New Zealand [K] attended [the local] school which she said she liked very much as it had a swimming pool and monkey bars. She said that she had good friends there. In Australia she attends [a local] school and said she likes that too, although she found it hard at first as she was nervous and did not know anyone.
8.[K] told me that she speaks to her father on the phone and that she likes to do that. She said that she had spoken to him on the morning of our interview and was “so excited because it’s his birthday in three days and he will be 40”.
His Honour did not refer to the Hague report, perhaps because the question of the child’s objections was not an issue by the time the hearing commenced before him. Nevertheless, the report was in evidence and sheds valuable light on K’s relationship with the father (which did not involve her being fearful of him).
The final plank on which his Honour’s conclusion that a return to New Zealand would expose K to grave risk of exposure to harm rested was his finding that the New Zealand authorities “have no real concern about her parenting at the hands of the father”. No doubt his Honour’s view of the conclusions of the Child Abuse Assessment was coloured by the fact that he had made findings regarding the behaviour and character of the father, some of which as we have pointed out were controversial and disputed by the father.
The assault on C, the father’s other child, was obviously concerning, but the New Zealand authorities were specifically asked to investigate the situation for K as a result of that assault. They found her happy and open to discussion and the school did not report any concerns about her physical or emotional development. The school had reported no concerns for the care of K while she resided with the father and the Department noted that the father had friends who were offering a parenting course so that he could learn safe strategies around his parenting of K. The Department noted, as his Honour did, that these supports may not be objective enough to be of real benefit were there concerns. While the report said “it is possible that [K] has learnt that she needs to behave a certain way around her father in order not to endure the wrath of him”, comfort would surely have been given to his Honour by considering the Hague report which indicated a warm relationship and one in which K did not appear to be fearful of her father despite likely exposure to violence in the household. While further examination of K’s exposure to violence would be an integral and essential part of a parenting case, the positive features of her relationship with her father required consideration on the question of whether there was a grave risk in the event of the return of K to New Zealand.
In addition, there was other relevant contextual material before his Honour. The appellant referred to a statement dated 1 August 2007 by the co-ordinator of a program in New Zealand attended by the father (annexed to the affidavit of Ms P sworn 15 August 2007) that:
[The father] attended and completed the 18 week Living Without Violence programme...[The father] occasionally brought his young daughter [K] [who] presented as a secure child, who was able to speak for herself, and who described at length the family connections that were part of her life with her father.
There was also a statement dated 3 September 2007 by a public health nurse (annexed to the affidavit of Ms P sworn 4 September 2007) that:
[The father] has continued to ask me for support in other parenting issues as he seeks to parent [K] in the best way he knows how.
[K], his daughter, is a lovely, bright, happy little girl who is always clean and tidy at school, attends school regularly and always has a ‘healthy’ lunch.
No doubt the matters referred to by his Honour concerning the father’s past history of aggression, driving and other offences, drinking and generally being a poor role model, would be relevant matters to be weighed with other matters in a parenting application for K in which the task was to determine the best interests of the child. However, they fall short of establishing a grave risk of exposure to physical or psychological harm or an intolerable situation if K were returned to New Zealand.
Other than to find that that it would not be possible to impose conditions that would safeguard K, his Honour undertook no analysis of what orders might be made on an urgent basis by a court in New Zealand to safeguard her interests, nor did he question whether the mother might seek interim orders which enabled K to return to Australia with her pending a final hearing in New Zealand.
The possibility of alerting the New Zealand authorities to the concerns raised by the mother and asking for some kind of monitoring of the child’s welfare appears to have been discounted by his Honour because they had previously found nothing of immediate concern regarding her safety.
Although in DP v Central Authority; JLM v Director-General, NSW Department of Community Services (supra) the High Court made it plain that the reg 16(3)(b) exception is not to be narrowly construed, they said that:
The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. (original emphasis)
For reasons we have indicated, although the father’s shortcomings identified by his Honour would be very relevant in a hearing about residence based on best interest principles, it could not be said that the evidence supported a finding on the balance of probabilities that there was a grave risk of exposure to future harm if K were returned to New Zealand. No prediction of what may happen if the child were returned was made. That becomes even more stark when the mother’s acquiescence to K living with the father without objection for over 12 months is considered. In our view it was not open to his Honour on all the evidence to find that a defence under reg 16(3)(b) was established.
The respondent’s notice of contention
By her Notice of Contention, the respondent mother contended that the trial judge erred in finding that K was habitually resident in New Zealand (and not Australia) immediately before her retention in Australia.
In the course of his consideration of the issue of habitual residence, his Honour set out at considerable length his understanding of the relevant law (paragraphs 43 to 76 of his reasons). There was no challenge before us to his Honour’s analysis of the law. In the course of that analysis and immediately following it, his Honour made the following observations:
65. There is no issue that immediately before the father and [the child] left Australia for NZ the child’s place of habitual residence was Australia as it was the place of habitual residence of both parents who were both exercising rights of custody. The issue is whether the agreement between the parents for the child and father to leave Australia for New Zealand effected a change of habitual residence.
…
70. If there was no agreement to change [the child’s] place of habitual residence, then the notion of ‘rights of custody’ is of fundamental importance to where [the child] is habitually resident. If the agreement provided the father with sole rights of custody then her habitual residence would change with her father’s. If the rights of custody remained with both parents, then [the child’s] place of habitual residence would remain Australia in the absence of an agreement between her parents.
…
77. Two questions arise is [sic] this case:
1. When the child moved to NZ with father, did the parents’ ‘agreement’ for [the child] to travel to New Zealand with the father terminate the child’s habitual residence in Australia?
i. Through mutual agreement? Or
ii. By virtue of the father acquiring sole rights of custody?
2. If so, did the child obtain habitual residence in NZ?
Again there was no challenge before us to these observations by his Honour, being essentially that prior to the child leaving Australia her habitual residence was Australia as that was the habitual residence of her parents (who were both exercising rights of custody), and that if her habitual residence was to change with that of the father, it would be necessary for her mother to have agreed that the father should exercise sole rights of custody in relation to her.
His Honour then made the following observations regarding the period between when the child arrived in New Zealand and when she was retained in Australia in April 2007:
78. Unless there was some fact or circumstance which occurred between the time [the child] left Australia at the end of 2005 and the time she returned to Australia in April 2007 which would warrant a conclusion that her habitual residence in that time had changed, then the conclusion must be that in April 2007 when she was retained in Australia by her mother her habitual residence was the same as that when she first arrived in NZ at the end of 2005.
Importantly for present purposes, his Honour then continued:
79. The evidence of the father and the mother in many ways is diametrically opposed. It has therefore been necessary for me to look to independent sources of evidence in order to try and ascertain what the true position might be based on the civil standard of proof. I have been particularly assisted by the evidence of Mr [R], the documents tendered as produced by the NSW Police Department, the Report on Child Abuse from New Zealand and the correspondence from “Work and Income” in New Zealand.
Again there was no challenge before us to his Honour’s conclusion that the evidence of the parents was “in many ways … diametrically opposed”, and that it was therefore necessary for him to look to “independent sources of evidence”.
However, it was accepted before us that of the categories of “independent evidence” mentioned by his Honour, it was only the correspondence from “Work and Income” in New Zealand which could be of any assistance in determining the habitual residence issue. Accordingly, it must have been on the basis of that evidence that his Honour was able to conclude that he was satisfied:
80. … that the habitual residence of [the child] changed at the time she left Australia to reside in New Zealand. I am satisfied at that time the mother agreed to the father exercising sole custody of [the child]. At that time the father commenced to exercise sole custody of [the child] and therefore her habitual residence changed with his from Australia to New Zealand.
What then was the evidence from “Work and Income” in New Zealand which enabled his Honour to be satisfied that the mother had agreed that the father should exercise sole custody of the child, and that therefore her habitual residence had changed from Australia to New Zealand?
Earlier in his reasons, his Honour had explained the evidence from “Work and Income” in the following way (emphasis added):
42. On the 21st September 2007 the Applicant filed a further affidavit in the case. This was in response to my request that the Applicant try to obtain from New Zealand a copy of the letter provided to the father by the mother at the time she permitted [the child] to travel to New Zealand with him. This letter was provided by the father to “Work and Income” in New Zealand. The affidavit annexes a letter from Work and Income dated 22nd August 2007. It also annexed a copy of [the child’s] birth certificate and a copy of the mother’s passport (first page). The information in the letter makes clear to me, particularly when read in the light of the letter from that same body dated 1st August 2007 and annexed to the father’s affidavit, that the representation from the mother was that [the child] would be in the sole custody of the father from the time he left Australia to take up residence in New Zealand.
The following passage from the transcript of the hearing before his Honour on 17 September 2007, reveals that his Honour’s request for further material referred to in paragraph 42 of his reasons, was made after he had taken a brief adjournment to read the material relied on before him:
HIS HONOUR: Ms Cleary, I couldn’t find the letter signed by the mother, that was provided to the father, so he could get a pension. Did you have a copy of that, or not?
MS CLEARY: I think it’s ---
HIS HONOUR: There’s a letter from the Department, confirming that he had a pension at a certain time, but in the affidavit that was attached to the application, in paragraph five, and signed a letter to work from New Zealand, confirming that I had the day-to-day care of [the child], I was just wondering ---
MS CLEARY: I don’t have that personal letter, your Honour, only that annexure D, that your Honour has obviously seen.
(transcript p 174, line 13-25)
His Honour was here clearly referring to paragraph 5 of the father’s first affidavit, sworn 26 May 2007, which was as follows:
5. When I came to New Zealand in January 2006, I bought [the child] with me. [The mother] agreed that [the child] would be in my day to day care, and I agreed that [the other child] would be in her day to day care. [The mother] signed a letter to Work and Income New Zealand (WINZ) confirming that I had the day to day care of [the child], and this enabled me to obtain a benefit for her. (AB page 45, paragraph 5)
The reference to “Annexure D” is to Annexure D to the father’s affidavit, sworn 12 August 2007. In paragraph 13 of that affidavit the father said (emphasis in original):
The conversation set out in [the mother’s] affidavit purportedly between her and me in relation to me sending [the child] back at the end of 2006 is simply an invention of [the mother’s] imagination. It never ever occurred and I never agreed to send [the child] back to Australia. I have always known that [the child] was living with me and [the other child] would live with [the mother] in Australia. As set out in paragraph 5 of my first affidavit, [the mother] signed a letter for Work and Income New Zealand confirming that I had the day to day care of [the child]. Annexed hereto and marked with the letter “D” is a letter from WINZ confirming that I received the Domestic Purpose benefit from 13 February 2006. A person can only get the DPB in New Zealand if they are the primary caregiver of a child. (AB page 85, paragraph 13)
Annexure D is a letter dated 1 August 2007 from “Work and Income” to the father which (omitting formal parts) reads as follows:
Re: Domestic Purposes Benefit – Sole Parent
This is to confirm that you were granted Domestic Purposes Benefit – Sole Parent from 13th February 2006 to 27th November 2006.
Domestic Purposes Benefit – Sole Parent was cancelled due to you returning to work.
It was paid in respect of [K] (DOB: […]).
If you have any questions or want help with this, please call us on our General Enquiries 0800 number.
In the course of submissions by counsel for the Central Authority, Ms Cleary, the following exchanges occurred:
MS CLEARY: What I was suggesting to your Honour was that [the child] and her father went to New Zealand together when the parties first separated, and [the] mother and the little sister then came over and stayed part of the time with the father and apparently part of the time with an auntie. But as to [the child’s] residence, there was an agreement between the parents that [the child] would live with her father and the little one would live with her mother.
HIS HONOUR: Where do you say this agreement is?
MS CLEARY: The father says in his affidavit that there was an agreement between them that they’d each have one of the children. Your Honour has seen that in the father’s affidavit?
HIS HONOUR: Not in those words. The first affidavit?
CLEARLY [sic]: The first affidavit, paragraph 5, “When I came to New Zealand in January 2006, I bought [the child] with me. [The mother] agreed that [the child] would be in my day to day care, and I agreed that [the other child] would be in her day to day care”. Then there’s the letter that’s signed about it.
HIS HONOUR: Yes, that was all about money, wasn’t it?
CLEARLY [sic]: Well, whether it was or not, what it amounted to was one child would live in New Zealand and one child would live in Australia, that was the obvious implication of that because the father went straight to New Zealand with [the child], post separation. In paragraph 4 he says “[The mother] and I separated just before [the child] and I came to New Zealand [sic] We arrived on 11 January and then [the mother] came out”. That’s, admittedly, inconsistent with his summary later on in his affidavit material. I think in his second affidavit he summarises it a little bit differently and says that they came out together but in his first one, and presumably he was closer to the facts when he made that one, he said that’s how it worked, one child each, and they were going to live in different countries.
[The child] then takes up residence in the ordinary way, she lives there with her father, she goes to school there, she’s financially provided for by her father and the New Zealand government and that’s where she stayed, other than the period of six weeks when she went back with her mother to Australia in about March or April and was then returned to New Zealand.
HIS HONOUR: This consent, allegedly signed by the mother, is a hugely important piece of evidence in the scheme of this case, isn’t it, that’s why I asked about it earlier. We don’t seem to have it?
MS CLEARY: No, because objectively that’s where she remained. I understand that the letter that gave rise to the benefit that the father has would assist your Honour by what the mother had actually said in her letter but looking at the objective facts after separation the father and [the child] did go to New Zealand, that’s not contested. The mother and the younger child come over and the reconciliation is attempted, they agree that happened.
HIS HONOUR: But I can’t just have regard to the objective facts. I mean, the objective facts, if they’re the only things that I have regard to, could work a huge injustice, couldn’t it, because the objective facts are supported by, in this case, very important subjective facts, what each party understood was the reason for the objective facts occurring.
The mother, the picture she paints is that it was never any part of an agreement that [the child] would be residing permanently with the husband, it was always intended that the mother and the other daughter would come to New Zealand shortly following the father’s having to leave Australia, it appears, otherwise he was going to be in a lot of trouble here. The purpose was, of their coming on the mother’s version, to see if I could live there, can we live as a family there. But she says the clear understanding was that if we can’t that [both the children] were going to return to Australia with her.
MS CLEARY: Yes, that’s what the mother says about it.
HIS HONOUR: I mean that’s incredibly important, isn’t it, in understanding and interpreting the regulation in this case? (Transcript, pages 34-35)
…
HIS HONOUR: Has your instructing solicitor been able to investigate what the possibilities are of us being able to obtain a copy of the letter that the mother signed, referred to by the father in his affidavit?
MS CLEARY: No, your Honour.
HIS HONOUR: In Australia, the equivalent of that department in New Zealand that was provided with that document is the Department of Social Security, is that right?
MS CLEARY: I’d have to check that.
HIS HONOUR: Is that what it’s called at the moment? Social Security?
MS CLEARY: I’m not sure. I might be able to assist I think.
HIS HONOUR: The Department in New Zealand has a different name, but what’s the equivalent of the Department in Australia?
MS CLEARY: I see what you mean. Yes, it would be Centrelink.
HIS HONOUR: I understand the legislation which provides an absolute defence to Centrelink not having to answer subpoenas, not having to provide material in respect of subpoenas issued against that department, section 17 or something of that department’s - the legislation affecting that department. So I would apprehend that there might be something similar in New Zealand. However, I think with the consent of the father who provided the document to the Department, they could provide us with a copy of it.
It seems to me to be coming more and more of a crucial document, being a piece of objective evidence which may assist in determining exactly what the intent of the mother was at this very relevant time and if it was clear that is was her intent at that time, that there would be an open ended provision for [the child] to live with her father, then what might flow from that is an inference that at that time in conjunction with [the child] then leaving Australia to live in New Zealand in the company of her father her habitual residence changed to that of her father. So that whatever his habitual residence was at that time and since he becomes her habitual residence.
MS CLEARY: I understand how your Honour would say that would assist, but it comes back doesn’t it to your Honour not being able to determine which of the parties if either of them are wrong and I think on the evidence one of them would have to be accepted over the other, because their stories are so different. If that letter established either that the mother had a fully formed intention at the time that [the child] would reside long into the future in New Zealand or that she was there on a temporary basis and would come back later, that doesn’t rule out the possibility of changes to attitude between the parents between that point and April ’07.
HIS HONOUR: But it does, it does establish the starting point and that seems to me to be very important. What was the starting point? As far as the mother’s concerned, the starting point never was. There was never any departure from the position that [the child] had - was habitually resident in Australia and nothing that happened thereafter changed that. That’s her point. That seems to be a pretty important building block. Anyway we’ll return to that. I just want to have it placed on the record that I’m giving the central authority an opportunity to do something about that if they consider it can be done. (Transcript, pages 39-40)
It appears from the transcript that at the conclusion of the hearing on 17 September 2007, his Honour arranged for a further listing of the matter on Friday 21 September 2007 to enable the Central Authority to obtain the mother’s letter from “Work and Income” in New Zealand, which his Honour clearly regarded as important for a determination of the habitual residence issue.
There is no transcript before us of any further hearing before his Honour on 21 September 2007 or any other date. But a further affidavit was filed by a Central Authority officer on that day. In the affidavit the officer stated:
3. On Thursday 20 September 2007 I received a scanned version of the letter from Work and Income dated 22 August 2007 with 2 attachments, there is now annexed and marked “A” copies of the said letter and 2 attachments.
4. I also understand and verily believe that the mother appears to have signed that doucment [sic] that [K] is in her father’s care whlist [sic] she was in Australia and that this was done at a Centralink [sic] office. I further understand that this information was then sent by the Australian Centrelink office to their counterparts although the New Zealand equivalent do not appear to have a copy of the mother’s signed authority.
The annexed letter to the father from “Work and Income” dated 22 August (again omitting formal parts) reads:
Re: Information requested in regards to [K]
We have now received your file back
The information from [K’s] mother … was held on this in regards to confirming that [K] left her care on 29/12/2005 into the care of yourself.
This has been photocopied and enclosed for you.
If you have any questions or want help with this, please call us on our General Enquiries 0800 number.
The only annexures to the letter which were annexed to the copy of the relevant affidavit in the Appeal Book are a copy of the child’s birth certificate and a page from the mother’s passport. No letter from the mother appears.
Nevertheless, this is the material on the basis of which his Honour drew the following important conclusion in the last sentence of paragraph 42 of his reasons:
42. …The information in the letter makes clear to me, particularly when read in the light of the letter from that same body dated 1st August 2007 and annexed to the father’s affidavit, that the representation from the mother was that [K] would be in the sole custody of the father from the time he left Australia to take up residence in New Zealand.
With respect to his Honour, we cannot see how on the basis of the letters of
1 August 2007 and 22 August 2007 from “Work and Income” the conclusion could be drawn that the mother had represented that the child would be in “the sole custody” of the father from the time he left Australia to take up residence in New Zealand. A person who has the “care” of a child does not necessarily have “sole custody” of a child.
It was not suggested before us that in determining that the child had become habitually resident in New Zealand, his Honour erred in relying on his conclusion that the father had sole custody. It will be recalled that his Honour had referred to this matter in paragraph 70 of his reasons. Shortly thereafter in paragraph 73, he set out the provisions of Regulation 4, which are as follows:
(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.
(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.
(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.
His Honour reached his conclusion in paragraph 80 that he was satisfied that at the time the child left Australia with the father “the mother agreed to the father exercising sole custody” of the child. It is clear from what has been said earlier that his Honour’s conclusion was based on the correspondence from “Work and Income” in New Zealand. That correspondence referring only as it did to “care”, could not be said to support the conclusion of an agreement by the mother to the father’s having rights of custody of the child, particularly as that term is explained in Regulation 4. The mother’s letter to “Work and Income” may have taken the matter further. But the Central Authority was not able to provide that letter to his Honour or to this Court.
Conclusion
We thus conclude that his Honour was in error in determining that the father had sole custody of the child and that therefore the child was habitually resident in New Zealand. There is thus substance in the mother’s notice of contention, and although the Central Authority’s appeal also has substance, his Honour’s order dismissing the application for an order for the return of the child, must stand. Such an order could not be made unless the evidence before his Honour supported the conclusion that the child was habitually resident in New Zealand.
Accordingly, the appeal must be dismissed on the basis of the notice of contention.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 25 August 2008
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