Director-General, Department of Families & BW

[2003] FamCA 335

[2003] FamCA 335

FAMILY LAW ACT 1975

IN THE FAMILY COURT
OF AUSTRALIA

AT BRISBANE

No. BR149 of 2003

IN THE MATTER OF:

DIRECTOR-GENERAL,
  DEPARTMENT OF FAMILIES

APPLICANT
AND:

BW
  RESPONDENT      

BEFORE THE HONOURABLE JUSTICE O’REILLY

Date of Hearing:  4 April 2003

Judgment Delivered:  11 April 2003

Appearances:  Ms Maloney of counsel, instructed by Crown Law Office, Brisbane in the State of Queensland appeared on behalf of the APPLICANT.

THE RESPONDENT appeared in person

R E A S O N S   F O R   J U D G M E N T

Name of Case                  Director-General, DEPARTMENT OF FAMILIES v W

File Number  B149 of 2003

Date of Hearing              4 April 2003  

Date of Judgment           11 April 2003

Coram  O’Reilly J

Catchwords:                RETENTION OF CHILD – Date retention occurs for the purpose of Regulation 3(2) Family Law (Child Abduction Convention) Regulations – Retention occurs from the day following agreed date for return

Legislation:Family Law (Child Abduction Convention) Regulations 1986: Reg 3(2); Reg 16(1)(b)

Cases considered:Murray v Director, Family Services, ACT (1993) FLC 92-416

Re H & Anor (minors) [1991] 2 AC 476

Artso v Artso (1995) FLC 92-566

This was an application brought by the Director-General, Department of Families for the return of a child to New Zealand, following a wrongful retention of the child by the respondent mother.  The child, the subject of the application, came to Australia to stay with his mother for the Christmas holiday period.  Prior to the agreed date for return, the mother telephoned the father and said she would not return the child to the father on 20 January 2002 as agreed.  The child was not returned on 20 January 2002.

Argument at the hearing addressed the following issue:

Whether Regulation 3(2) Family Law (Child Abduction Convention) Regulations operated so that the child was wrongfully retained from the date that the mother notified the father that she would not return the child, or from the date when the child should have been returned to the father.

HELD:-

The child was wrongfully retained from the day following the date he was due to be returned to New Zealand, under the original agreement between the parents, and not from the date that the mother threatened to retain the child.  

This is an edited version of the full judgment in a case where O’Reilly J ordered the return of a child to New Zealand. The report deals only with the issue of the time at which retention occurs for the purposes of the Family Law (Child Abduction Convention) Regulations.

Application

1. This is an application filed on 23 January 2003 by the Director-General, Department of Families under the Family Law (Child Abduction Convention) Regulations for an order pursuant to reg 15 of those Regulations that the child T, born on 1 May 1992, now 10 years, be returned to New Zealand.

2. Ms Maloney of counsel appeared for the applicant Director-General.  The respondent mother appeared in person.

Historical background

1. The requesting applicant is JR, the father.  He was born in New Zealand on 3 December 1933 and is now 69 years.  He is a New Zealand citizen and resides in New Zealand.

2. BW is the respondent mother.  She was born on 8 November 1961 and is now 41 years.  The place of her birth is not in evidence.  Her nationality is described in the requesting father’s application as “European”.  She resides in Australia.

3. The child was born in Australia.

4. The mother and father met in Australia in 1991, whilst the father was temporarily in Australia.  When she met the father, the mother had been living in Sydney with her then four children, M, B, P and S.  The father and the mother did not marry.

5. In 1994 the father returned to New Zealand.   In 1995, the mother joined the father in New Zealand.  She remained with the father in New Zealand for a further period of 9 months.  In 1996, the mother moved elsewhere in New Zealand.  By agreement the child, then aged 4 years, remained with the father.  In 2000, the mother returned to Australia.  She has resided here since.

6. The mother said that before she moved back to Australia in 2000 she and the father agreed that when the child turned 11 years he would reside in Australia with the mother to complete his schooling as there are no secondary schools where the father was living in New Zealand.

7. No orders have been made in New Zealand or Australia concerning the child.

8. At Christmas 2000 the child holidayed in Australia with the mother and was returned to the father in New Zealand.

9. On 16 December 2001 the child again arrived in Australia for the Christmas holidays.  By agreement between the mother and the father, the child was to be returned to New Zealand on 20 January 2002.  Between 16 and 25 December 2001 (mother’s version) or on 1 January 2002 (father’s version) the mother telephoned the father and said that she had been told by her daughters M and S that the father had sexually abused them and that accordingly, she would not return the child to the father on 20 January 2002.

10. On 20 January 2002 the mother did not return the child to New Zealand. 

11. On 16 December 2002 the father completed an application in New Zealand under the Convention on the Civil Aspects of International Child Abduction.

12. On 15 January 2003 the Director-General filed this application.

13. On 23 January 2003 Judicial Registrar Smith made interim orders including for injunctions to secure the location of the child in Australia, the preparation of a Family Report concerning the child’s objection to return and directions for the hearing of the application.

14. Mr Barry Collings, Court Counsellor, interviewed the mother and the child on 13 February 2003, and on that date provided the Family Report to the Court.

15. The hearing took place on 4 April 2003.

Issues

1. The mother stated that she did not contest that:

   (a)the habitual residence of the child as at 16 December 2001 was New Zealand;

   (b)New Zealand is a Convention country to which the Convention applies;

   (c)the mother retained the child in Australia on 21 January 2002.

2. The mother stated that she did contest that:

   (a)the requesting applicant, the father, possesses rights of custody in respect of the child;

   (b)at the date she retained the child she breached the father’s rights of custody in relation to the child which he was exercising at that time or would have exercised at that time but for the retention.

3. Despite the mother’s statement that she retained the child in Australia on 21 January 2002, her answer and cross-application sought dismissal of the application on the ground that:

   “b.      The application was made more than twelve months after T came to reside in Australia, and he is settled into a stable family environment.”

4. In essence, the issue the mother raised is whether the retention occurred on the date she told the father she would not return the child to New Zealand (between 16 and 25 December 2001 on her version and on 1 January 2002 on the father’s version) or the date after the child was due to return to New Zealand (21 January 2002).  The Director-General’s application was filed on 15 January 2003.  Thus, if the retention occurred on the date the mother told the father she would not return the child to New Zealand, the Director-General’s application was filed at least one year after the retention, entitling the mother under reg 16(1)(b) to argue the issue of the child being settled in his new environment in Australia.

5. In the circumstances of the mother appearing for herself, it is appropriate for the Court to treat the mother’s statement that she did not contest that she had retained the child in Australia on 21 January 2002 (see above) in the lay sense, namely, that she did not return the child to New Zealand on that date, and not in the legal sense of an admission that the retention occurred on that date.

6. On this issue, the Director-General argued that the retention occurred on 21 January 2002, being the day following the failure to return the child on 21 January 2002.

7. A subsidiary issue which arose is whether, if the mother becomes entitled to argue that the child is settled in his new environment in Australia, that should be assessed by the Court as at the date of filing of the Director-General’s application, or the date of the hearing of that application.

8. [The mother’s answer and cross-application also contained other grounds for dismissal, which were dealt with by her Honour in the course of the Judgment.]

   …

Issues on which the Director-General carries the onus

The date on which the retention occurred

1. Reg (3)(2) defines “retention of a child” by reference to a breach of the rights of custody of a person, actually exercised at the time of the retention, or which would have been exercised but for the retention.

2. The effect of the definition is that there can be no retention until there is an actual breach of another’s rights of custody.  Significantly, reg 3(2) does not speak of threatened retention, but of actual retention.

3. Where a child is taken to another country for an agreed period of time, it would appear that there can be no retention until the expiry of that period of time.  In Murray v Director, Family Services, ACT (1993) FLC 92-416 (FC) Nicholson CJ and Fogarty J (with whom Finn J agreed) at 80,252 – 80,253 accepted the submission of the Solicitor-General for the Commonwealth that “removal” and “retention” are alternative and discrete events. Their Honours referred with approval to the speech of Lord Brandon in Re H & Anor (minors) [1991] 2 AC 476 (HL) at 500B – C:

   “…For the purposes of the Convention, removal occurs when a child, which has previously been in the state of its habitual residence, is taken away across the frontier of that state, whereas retention occurs where a child, which has previously been for a limited period of time outside the state of its habitual residence, is not returned to that state on the expiry of such limited period.   …”

4. The Full Court in Murray went on to observe at 80,253 that the Travaux Preparatoires to the Convention, para 108, provided:

   “….The fixing of the decisive date in cases of wrongful retention should be understood as that on which the child ought to have been returned to its custodians or on which the holder of the right of custody refused to agree to an extension of the child’s stay in a place other than that of its habitual residence.”

5. However, in Murray, the Full Court was not expressly dealing with the question of whether retention may occur otherwise than by a failure to return a child upon the expiry of an agreed period.

6. In Artso v Artso (1995) FLC 92-566 Mushin J said at 81,638:

   “…At the moment that the husband refused the wife permission to return the children to their country of habitual residence, he was wrongfully retaining them contrary to the provisions of the Convention.”

7. However, as I read that decision, it is not authority for the proposition that, where a child is taken to another country for an agreed period of time, retention can occur on the date on which the parent with the child in the other country threatens not to return the child at the end of the agreed period of time.  Mushin J’s statement must be read in the context of the facts of that case.  The habitual residence of the children was England.  The husband and the wife came with the children to Australia on the basis of an agreement that they would stay for at least one year (father’s version) or that they would stay for up to one year (mother’s version).  Shortly after the arrival in Australia the parents separated and the mother decided that she wished to take the children back to England.  The father refused permission.  Mushin J preferred the mother’s version of the agreement, deciding that the father’s refusal amounted to a retention.  Alternatively, he found that if the father’s version of the agreement was correct, the moment the marriage broke down the agreement between the parties was at an end.  It was in this context that Mushin J made the observation set out above.  Mushin J was not in that case dealing with the circumstance of a child taken out of a country of habitual residence for an agreed (in the sense of fixed) period of time.  Thus, the date of the refusal to permit return to the country of habitual residence was found by Mushin J to be the date of retention, because there had been no actual fixed or agreed date of return.

8. There is no reason in this case, nor authority to support the proposition, that the Court should find that the retention occurred on the date on which the mother told the father that she would not return the child.   According to the agreement, the child was not due to be returned until 20 January 2002.  Despite the mother’s earlier threats, she was entitled to retain the child until 20 January 2002.  There was therefore no wrongful retention until 21 January 2002. 

9. It follows that the Director-General has proved, and I find, that the date of retention was 21 January 2002, being the day following the agreed date for the return of the child.

10. It follows that the Director-General’s application was filed within one year after that date, namely on 15 January 2003.

11. Further, by the application of reg 16(1)(a) and (b), it follows that the mother is not entitled to raise the issue as to whether the child is settled in his new environment in Australia.

12. It is also not necessary to decide the subsidiary issue as to whether, if the mother had become entitled to argue that the child is settled in his new environment in Australia, that should be assessed by the Court as at the date of filing of the Director-General’s application, or the date of the hearing of that application.

1. [Her Honour then went on to consider the other elements necessary to make out a case for the return of the child T, and the potential exceptions relevant to the case before the Court.]

   …

Result

1. Having regard to all of the facts of the case, the proper exercise of the Court’s discretion is to order the return of the child to New Zealand.

2. …

I certify that the  preceding 17 pages are
a true copy of the reasons for judgment delivered by this Honourable Court.
Sgnd:  ………………Associate 11/04/2003