Director-General, Department of Families v P

[2001] FamCA 547; (2001) FLC 93-077

FAMILY LAW ACT 1975

IN THE FAMILY COURT
OF AUSTRALIA
AT BRISBANE No. BR 2168 of 2001

BETWEEN:

DIRECTOR-GENERAL
DEPARTMENT OF FAMILIES
Applicant

AND:

P
Respondent Father

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE JERRARD

Date of Hearing : 26 April 2001

Date of Judgment : 26 April 2001

Appearances: Mr. Parrott, Solicitor, instructed by C.W. Lohe, Crown Solicitor appeared for the Applicant.
Ms Carew of Counsel, instructed by Ferguson & Cannon, Solicitors appeared for the Respondent Father.

CHILD ABDUCTION – Hague Convention on the Civil Aspects of International Child Abduction – Whether an unsealed judgment in a foreign jurisdiction diminishes or alters in New Zealand rights arising in New Zealand by operation of law.

CHILD ABDUCTION – Hague Convention on the Civil Aspects of International Child Abduction – Whether the term “retained” in regulation 16(3)(a) should be construed as defined in regulation 3(2).

CHILD ABDUCTION – Hague Convention on the Civil Aspects of International Child Abduction – Whether a parent with rights of custody in another convention country who decides that the child may reside in Australia for an indefinite period of time, extinguishes their right to reverse that decision at a later time.

On 23 February, 2001, the Director-General of the Department of Families filed an application which sought an order for the return of the child, J, who was aged 10, to New Zealand.

The mother was a New Zealand national who lived in a regional area in New Zealand, whilst the father held dual New Zealand and Australian citizenship, but resided in South-East Queensland.

When the mother and father separated in October, 1995, both of their sons, J and C, continued to reside with the mother. By consent, on 1 December, 1998, the Family Court of Australia made residence orders in favour of the mother with respect to both of the children.

In March, 1999, the mother informed the father of her intention to relocate to New Zealand with both J and C. At no stage did the father object to the mother’s proposal and, subsequently, the mother relocated with the boys to New Zealand in December, 1999.

In January, 2001, the parents agreed that J could travel to Australia from 15 to 22 January, 2001, for the purposes of a holiday with the father.

The mother asserted that on 19 January, 2001, J phoned her and requested that he be permitted to remain in Australia with his father until 26 January. The mother claimed that whilst she agreed to this request, on 25 January the father then contacted her and advised that J would not be returning to New Zealand at all.

The father claimed that the mother informed him, in a phone call made on 19 January, that she had decided J could live with him as it was his turn to take some responsibility for the child. According to the father, the mother stated that should he be placed on the return flight on 22 January, she would not be there to pick the boy up.

The four issues which fell for determination were:

1.Whether the Court should refuse to hear the application brought by the Director-General;
2.Whether it had been established that the mother had rights of custody within the meaning of the relevant law. In this context the father argued that the residence order made by the Family Court of Australia in 1998 was the sole source of all of the mother’s rights of custody with respect to J, even though that order had not been sealed in New Zealand pursuant to the New Zealand Guardianship Act 1968. Whereas the mother submitted that by virtue of the Guardianship Act 1968, both parents were the legal guardians of both boys in New Zealand;
3.Whether it had been established that the mother consented, within the meaning of that applicable law, to J being retained in Australia; and
4.Whether or not if she had, the Court should exercise the discretion arising by that law to order the return of J to New Zealand.

The mother also sought an order that the father pay her return airfare from New Zealand to Australia, in conjunction with J’s return airfare.

Held: in ordering the return of the child to New Zealand:

The words “removal” and “retained” in regulation 16(3)(a) should be construed as provided in regulation 3(2), namely in breach of rights of custody actually being exercised or which would have been exercised but for that removal or retention.

The apparent inconsistency between regulation 16(2)(a) and 16(3)(a) can be resolved if regulation 16(2)(a) is understood to require evidence that a relevant removal or retention be in breach of rights of custody of at least one of a person, body or institution claiming rights of custody in relation to a child, and of which their can be more than one claimant, whereas regulation 16(3)(a) focuses on whether the particular applicant claiming retention or removal in breach of rights of custody had consented to that retention or removal.

New Zealand law, specifically the Guardianship Act 1968, attributed rights of custody of the children to the mother and to the father, and the mother's rights so attributed by New Zealand law were not reduced, overtaken or superseded in New Zealand by a residence order, in her favour, made by the Family Court of Australia on some earlier occasion. The fact of an unsealed judgement in a foreign jurisdiction does not diminish or alter in New Zealand rights arising in New Zealand by operation of law. The Director-General vCrowe 21 Fam LR 159 cited and applied.

Although the mother’s conduct was an offence under s65Y of the FamilyLaw Act, the Court should not refuse to entertain an application brought by the Central Authority, partly because there were different parties, and partly because there was really little criminal conduct by the mother, and, in any event, not sufficient to shut out either the mother or the Central Authority to the extent asked. The facts of the case also involved mitigating circumstances, given that the mother gave the father, in March, 1999, written notice of her intention to leave the country with the two boys.

A decision that a child live in Australia for an indefinite period could not extinguish a right to reverse that decision at a later time. The analysis of rights of custody made in The Director-General vCrowe 21 Fam LR 159, that those rights were still there for exercise when physical care had been delegated to another, necessarily implied that conclusion. In any event, it was implicit in the nature of rights of custody that a decision genuinely made could be changed for genuine reasons, either because of changed circumstances or simply because of a change of view. So long as the changed view expressed was not simply and obviously the capricious exercise of a whim, then those rights of custody must include the right to declare an end to an agreement that a child live somewhere else for an indefinite period. A parent with rights of custody in another convention country could change his or her mind, revoke that consent, and demand the return of the child to that other convention country, and there was nothing that the Family Court could do except order that return. Although the mother’s behaviour had been both dishonest and damaging to her relationship with J, it had not been simply an example of the capricious exercise of a whim, as distinct from an apparently genuine view that it was better for J to return to live in New Zealand.

The respondent needed to show consent after 25 January, 2001, the date on which the retention occurred. That date was chosen because it was then that the father opposed the mother's request for the boy's return, and only then was there a retention in breach of rights of custody the mother was attempting to exercise. The child's presence in Australia from 22 January to 25 January was clearly with her consent and by the agreement of both parents, but her consent to that period of three days residence in Australia, while clearly established, was irrelevant. No consent after 25 January, 2001, had been established and that was the relevant period.

REPORTABLE

HIS HONOUR: This matter has been the hearing of an application filed 23 February 2001 by the Director-General of the then Department of Families, Youth and Community Care Queensland, and now the Director-General of the Department of Families. That application, in which the Director General acts as the responsible central authority, asks for orders for the return of the child, J, born in November 1990, to New Zealand. The application also asks for orders that the respondent, the boy's father, pay the mother's return airfare to and from New Zealand to this country, and the child's return airfare.
The respondent father was born in November 1967, and is 33. The child's mother, who is the person who made application to the New Zealand Central Authority for the orders now sought, was born in January 1958, and is now 43. She is a New Zealand National living in a regional area in New Zealand, and the respondent father has dual New Zealand and Australian nationality. He lives in South-East Queensland.
The child, J, I am satisfied - and this appears not contested - had, in January this year, his habitual residence in the regional area in New Zealand, living there with his mother and his older brother, C, who was born in October 1989. The two parents married in November 1988 in Queensland, Australia, and separated on 1 October 1995. Both of their sons, C and J, have lived with their mother since the parents separated, other than the period in which J has lived with his father on and from 15 January 2001 to this date.
On 16 March 1999 the boys' mother informed the father in writing of her intention to relocate to New Zealand by no later than the end of April 1999, and effectively challenged him to object to that by some conduct, should he so object. The written notice invited him to make an application of some sort to the Family Court. There is no evidence of the father having recorded in writing or in any other way any objection to that foreshadowed step of hers, and in December 1999, the mother relocated to New Zealand from this country with both boys.
Her affidavit evidence, not challenged in the father's response, is that he had at all times the mother's New Zealand phone number and address, and she contended that she provided him with the boys' school reports. Whether that be true or not, it is a fact that there seems to have been no contact of a physical nature at all between both boys and their father between the period December 1999 and January of this year, and certainly J had not seen his father in that period.
What happened is that in January 2001 both parents agreed that J could travel to this country, leaving New Zealand and arriving here on 15 January 2001, for the purposes of a holiday with the father. That much is common ground. It was also common ground that at that time, both parents had agreed that J should be returned to New Zealand on 22 January 2001. Both parents had agreed that they would each pay half of his airfare.
The parties do not agree as to any other relevant matters. The mother's position described in the affidavit sworn by herself 1 February 2001 and annexed to the application in form 2 herein, claims that J telephoned her from Australia on or about 19 or 20 January and asked if he might stay a little longer with his father. The mother's affidavit case is that she agreed with J to cancel his return flight booked on 22 January, and told J that she would speak with his father, and re-book his return flight for a date around 26 January 2001. However, that goal was frustrated when on 25 January 2001, on the mother's case, the respondent father telephoned her, advising that he would not be returning J to New Zealand and had already enrolled the boy in a school in South-East Queensland.
The father's affidavit evidence is quite different. He was present in this Court and available for cross-examination, although the applicant's legal representative, Mr Parrott, passed up the opportunity to do that. The father's affidavit case is that on 19 January, at a telephone call timed from records he has produced at 10.57 am, he telephoned the mother's residence and put J on the telephone. J spoke with his mother and the father then spoke with the mother. His account of that event is that in that conversation, she said to him words to the effect that she had discussed the matter with C, and decided that J could live with the father. She added that it was the father's turn to take some responsibility for J, and that she would not be there to pick the boy up, should he be placed on the return flight to New Zealand on 22 January.
I think it is instructive that the mother's affidavit sworn 1 February 2001 says in respect of what must be the same call that J asked to extend the holiday and she agreed, and that the father at that time was not available to be spoken to by the mother. However, in another affidavit filed on 17 April 2001, she said of the same conversation that she had attempted to discuss an extension of J's holiday with the father, but instead, her conversation with the father had descended into a disagreement between the two of them over the mother's attitude to the father's new partner.
As Mr Parrott conceded, those appear to be quite inconsistent accounts of the same conversation. The father's affidavit evidence is that following that conversation, he made contact on 20 January 2001 with the boy's maternal grandmother, and in that conversation the grandmother described the mother as acting "emotionally" at that time. The father's affidavit case is that on 21 January he again spoke to the maternal grandmother, who said of her own daughter, the mother, that "one is not dealing with a balanced person."
I note here that an annexure "E" to the mother's own affidavit sworn 1 February 2001 includes a statement by the maternal grandmother, in which the maternal grandmother acknowledges having told the father, at the times alleged, that the mother was behaving in an "emotional" way, and in which the maternal grandmother contends that she did say also to the father that the mother was behaving irrationally, but not that the mother was unbalanced.
The father's affidavit evidence says that on 21 January he had prepared himself for the return of J to the mother's residence in New Zealand, and had travelled to his own parents' residence for the purpose of there being some contact between J and the paternal grandparents at that time. He was accompanied by his present partner. The affidavit evidence of both the father and his present partner is that during that visit on the night of 21 January, the mother telephoned the father. The father's case is that during that telephone call, the mother told him that she had cancelled J's ticket, and that the father should "deal with it."
The mother's affidavit evidence in her affidavit filed 17 April is that she did tell the father on that occasion that J's seat was cancelled, but claimed that she had no opportunity to explain why she had done this. The father's affidavit evidence continues that on 22 January 2001 at 10 past 3 in the afternoon the mother, in another telephone conversation, told the father that "J needs you. I am going back to study full time and I don't have the time" (I assume to parent both J and the parties' other son, C).
The father's affidavit evidence is that on 25 January 2001, in another telephone conversation, the mother said to him that J had not sounded happy when speaking most recently on the telephone with her, and that maybe it was best that J should return to New Zealand. The father's case is that then he told the mother that no, J was not returning to New Zealand, and the father has maintained that position ever since.
There are some other matters of evidence apart from the matters I have described. The father's affidavit filed 23 March 2001 has annexed to it some documents produced under Freedom of Information legislation by the Child Support Agency, which include a notation or record made on 22 January by that Agency to the effect that the payer, the father, would want to start a child support case of his own against the payee, the mother; and I think the implication of that notation is that, at that stage, the father had some reason to believe the boy would be living in Australia and not New Zealand.
A notation made on 25 January records a telephone conversation between the Agency and the mother, in which the author of the note records the mother as notifying a change of care, being very upset and crying, and advising that the boy wanted to stay in Australia with the father. Both those notations would be admissible as business records, and admissible pursuant to the provisions of the Commonwealth Evidence Act (1995). In addition, there is the fact that the mother's affidavit evidence includes the concession that she was intending to study in calendar year 2001, and the father's affidavit evidence includes notes which he describes making at the time of the various important telephone calls.
He is a police officer and within the Queensland Police Service has the position of a police prosecutor. He would be very familiar, I would expect, with the evidential value accorded to notes made at the time of or shortly after conversations which occur. The other affidavit evidence includes affidavit evidence from deponents supporting the mother's case, and establishing that prior to J's departure from New Zealand to Australia, it was clearly expected that J would be returning to New Zealand to live, and that J was a boy quite involved in community and sporting activities in the area in which he lives. The affidavit evidence also disclosed that the mother was apparently very adversely affected by J's remaining in Australia.
I think that the father's affidavit evidence is both more internally compelling than the mother's responses to it, and has the support of the statement by the maternal grandmother in annexure E to the mother's affidavit. That annexure supports the fact of conversations occurring between the father and the maternal grandmother at the relevant time about the nature of the mother's behaviour in cancelling tickets, or proposals that she do that, and the father's position is further supported by statements that J himself has made to a Mr D, who prepared a short family report in this matter.
That report is dated 17 April 2001, and Mr D spoke directly with J. The report includes paragraph number 5, which records that J said to Mr D:
“He asked his mother if he could visit his father, and after he arrived, he said that his mother told him that it was best if he stayed in Australia with dad. He added that the return ticket was cancelled.”
Not only does this demonstrate that the mother told J precisely what the father says in his affidavit that the mother told the father, but it is evidence which is admissible pursuant to s.100A of the Evidence Act (1995). Further support for the father's affidavit material is demonstrated in the simple fact that he had been prepared, it would seem, to return J to New Zealand until the evening of 22 January 2001, as demonstrated by the unchallenged fact of his visit to his own parents' premises on the night of 21 January 2001 with the apparent expectation that the next day he would be putting J on a plane to New Zealand.
In those circumstances, I am satisfied that the mother did volunteer the idea to the father on 19 January that J should live in Australia with him and for an indefinite period. I am satisfied that she volunteered to the father then that she would not be at the airport to collect J on 22 January if he was returned on that date to New Zealand. I find that the father then was concerned at her behaviour, and contacted the maternal grandmother, who on 20 January revealed knowledge of the mother's statements, described the mother as emotional, and who on 21 January said that either the mother was irrational or she was unbalanced.

I am satisfied that the father had not acted on the mother's statements of 19 or 21 January, and had prepared J to return to New Zealand on 22 January when at his own parents' premises. At that time he received a call from the mother, and was told that she had cancelled the boy's ticket. I am also satisfied that at some point, and prior to that telephone call, the mother had told J that she thought it was best if he stayed with his father. I am satisfied that the father was told by the mother on 22 January, as he says, that the mother thought J needed him, she was returning to study, and she did not have the time to parent both sons.
I add that I agree with the maternal grandmother's description of the mother's conduct at this time as irrational and not at all thought out or thought through, and I am satisfied that the father had the same opinion. I am satisfied that on 25 January she at first wavered, and then withdrew her suggestion that J should remain living with his father, and wanted the boy returned to New Zealand. The father refused to do this, and I am satisfied that he was upset at what had occurred to J in the week in which J had been in this country.
I record that the mother has provided evidence in annexures to her affidavits of her own written communications to J since 25 January 2001. I think it is likely that the contents of those would place what might be an extreme emotional burden on J, since those contents include denials by her that she had agreed to J staying in Australia. On the findings of fact I have made, both the mother and J must know that she actually told J quite differently at the time.
This conduct by her cannot be helping J to find stability or security in his life. Mr D thought that J had some need for his father, and J actually expressed a preference to Mr D for living in Australia with his father. J's relationship with his mother must have been damaged by her conduct since 16 January of this year, although the mother seems to blame the father for this damage and not herself.
The issues that have arisen are four in number, as the case has been presented. The first issue raised by Ms Carew, appearing for the father, is whether the Court should refuse to hear the present application brought by the Director-General. The second is whether it has been established that the mother has rights of custody within the meaning of the relevant applicable law. The third is whether it has been established that the mother consented, within the meaning of that applicable law, to J being retained in Australia. The fourth is whether or not if she has, the Court should exercise the discretion arising by that law to order the return of J to New Zealand.
As to the second matter, the relevant law is contained in the regulations made pursuant to section 111B of the Family Law Act. Those regulations are entitled the Family Law (Child Abduction Convention) Regulations (1986). They were enacted, as was section 111B, to enable performance by Australia of its obligations pursuant to the Convention on Civil Aspects of International Child Abduction, which was signed at the Hague on 25 October 1980. Those regulations have been the subject of authoritative interpretation by the High Court of this country, in a matter of De Lewinski v The Director General 20 Fam LR 390. Regulation 4(1) of those regulations provides to the effect that:
“For the purpose of the regulations, a person, institution or another body has rights of custody in relation to a child if the child was habitually resident in a Convention country immediately before the removal or retention of that child (from or in that Convention country), and 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 the Convention country”...

Rights of custody are further defined in regulation (4(2)) to 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.”

The arguments made concede that J was habitually resident in New Zealand immediately prior to his retention in Australia, whether that occurred either on 22 or 25 January of this year. However, it is denied that rights of custody were attributed to the mother under a law in force in New Zealand immediately before the retention of J in this country. It was submitted that an order made by an Australian Court had changed the consequences for the mother in New Zealand of what would otherwise have been the applicable legal position in New Zealand.
It is the fact that an order was made in the Family Court of Australia by consent on 1 December 1998, in which order this Court made a residence order in the mother's favour with respect to both boys, and contact orders in the father's favour with respect to both boys. That order has not been the subject of any appeal or subsequent application. There is no current application, as I understand it, filed in either this Court or a New Zealand Court for either different residence or different contact orders between the father and either child. The submission of Ms Carew is that the effect of the December 1998 residence order made by the Family Court of Australia was to create that order as the sole source of all of the mother's rights of custody with respect to J, and this submission was made even though the Australian order, on the evidence, had not been sealed in New Zealand pursuant to the relevant provisions of the New Zealand Guardianship Act of 1968.
It is the case that in this court proof of foreign law, and in this case that of New Zealand law, is a matter of a question of fact. The applicant Central Authority sought to establish the nature of that foreign or New Zealand law by putting in evidence, as an annexure to the application, the opinion of an experienced New Zealand lawyer, a Mr Checketts. That opinion described in it the experience of Mr Checketts, and it seems that he is a person entitled to give expert evidence about Family Law of New Zealand. That opinion cites s. 3 of the Guardianship Act of 1968 and the opinion declares to the effect that in the view of Mr. Checketts, both parents are legal guardians of both boys in New Zealand.
This was said to be by reason of the Guardianship Act (New Zealand) of 1968.
Ms Carew submitted that on an examination of that affidavit there was in truth no clear reason explained for the view described in the affidavit. This is actually true. However, the decision in Re Sebba [1959] 1 Ch R 166 is an authority for the view that an earlier reported decision of a Court in a particular jurisdiction on the content of a relevant foreign law can be relied on as prima facie evidence of that foreign law.
In this case, it is the fact that the provisions of the New Zealand Guardianship Act cited in his affidavit by Mr Checketts were also the subject of consideration by this Court in a matter of The Director-General v Crowe (1996) 21 Fam LR 159 at pp. 175 and 176. In that decision reference was made to other provisions of that same legislation, not referred to by Mr Checketts in his affidavit. There is no inconsistency between the provisions cited by Mr Checketts in his brief affidavit, and the self-same provisions cited in the decision in Crowe.
In both the affidavit of Mr Checketts and in the decision of Crowe, what was cited was section 3 of the Guardianship Act (1968), which relevantly provides that:
“Guardianship means custody of a child (except in the case of a testamentary guardian and subject to any custody order made by the Court) and of the right of control over the upbringing of a child, and includes all rights, powers and duties in respect of the person and upbringing of a child that were at the commencement of the Act vested by an enactment or rule of law in the sole guardian of a child.”
It is further provided in s. 3 that the expression "custody" means "the right to possession and care of a child". In the decision in The Central Authority v Crowe the reasons recorded at Fam LR 176 include the observation that the New Zealand lawyer then assisting the Court as to the contents of New Zealand law cited in addition s. 6(i) of the Guardianship Act, which section was described in the decision in Crowe as providing that, subject to other provisions of the Guardianship Act, both the father and the mother of a child would each be the guardian of a child.
The decision of the Full Court of this Court in the matter of Crowe then went on as follows:
“Thus, under the law of New Zealand, both the father and the mother were each a guardian of the child, and each had the rights referred to in section 3 of New Zealand legislation. In the absence of a Court order to the contrary, either party could remove the child from New Zealand and determine that the child should live in Australia. However, such removal and determination by one parent would not bring to an end the rights of the other parent. The retention of C in Australia interfered with the rights of the mother in that she was thus prevented from exercising her rights as a guardian in New Zealand.

The mother had rights of custody according to New Zealand law immediately before C's retention. Whether those rights of custody are rights of custody within the meaning of the legislation and whether there has been a breach of those rights are matters to be determined in accordance with Australian law. Rights of custody for the purposes of the regulations are set out in regulation 4 thereof, and include "the right to determine the place of residence of the child".

Thus, the rights of custody which the mother had under New Zealand law were rights of custody within the meaning of the regulations. However, there would only be a breach of those rights if at the time of retention the rights of custody were actually being exercised, either jointly or alone, or those rights would have been so exercised, but for the retention of the child.”

I am satisfied that the law of New Zealand does attribute rights of custody of children to the mother and to the father, and that the mother's rights so attributed by New Zealand law are not reduced, overtaken or superseded in New Zealand by the fact of a residence order in her favour having been made by the Family Court of Australia on some earlier occasion. I think that is a position which applies whether that order is in truth sealed or not.
No authority was cited for the submission made by Ms Carew, and I accept as an accurate statement of the New Zealand law the opinion of Mr Checketts, which opinion necessarily implies that the simple fact of an unsealed judgement in a foreign jurisdiction does not diminish or alter in New Zealand rights arising in New Zealand by operation of law. I note that there is in truth no actual factual inconsistency which is shown between the terms of the residence order in the mother's favour in this country and the rights given thereby, and the guardianship rights attributed to the mother by operation of the Guardianship Act (1968) in New Zealand.
In respect of the first issue raised, Ms Carew argued that the conduct of the mother in December 1999, and indeed throughout 1999 in Australia, in taking the children, who were the subject of an order for residence and contact orders made by this Court, out of Australia, in apparent contradiction to the contact orders made by this Court, and without the written consent of the father witnessed as required by regulation 13 of the Family Law Regulations of 1984, meant that the mother had committed an offence against s. 65Y of the Family Law Act of 1975.
That section provides, as Ms Carew submitted, and makes it an offence punishable by three years' imprisonment,
If a person who is party to proceedings in which a residence or contact order was made intentionally takes a child the subject of that order from Australia to a place outside Australia other than with the consent of the other parent in writing authenticated as required by regulation 13 of the Family Law Regulations, or when that removal from Australia is in accordance with the order of either this Court or a Court exercising jurisdiction under the Family Law Act of 1975.
It follows that Ms Carew's submission that the mother has rendered herself liable to a maximum penalty of three years' imprisonment is accurate, if and when the mother is convicted of the offence which she has, it would seem, committed. I add that I think there are mitigating circumstances in this case, those being demonstrated by the annexure "B" to her affidavit, that being a copy of the written notice she gave the father in March 1999 of her intention to leave this country with the two boys. She did therefore give him plenty of advance warning, and he has not suggested otherwise.
I think that her conduct was not the sort of conduct at which the provisions of the legislation are particularly aimed, and there would therefore be little point in any prosecution of her. For that reason, I think I would not be justified in acceding to the request made on the father's behalf that the Court refuse to hear an application by the Central Authority. That request first was made on the ground that the mother was in contempt of the December 1998 order, but that ground was not pressed, as counsel accepted that the application by the Central Authority was not an application in the same proceedings or the same cause, in the sense which those terms were defined in the decision of the Full Court of this Court in Fahmi 19 FLR 517 and (1995) FLC 92-637. Furthermore, these were not proceedings between the same parties; another significant hurdle.
At the end, the ground pressed was simply that her conduct was an offence, and accordingly the Court should refuse to entertain an application brought by the Central Authority, which was brought in assistance of the mother. I am not persuaded I should do this, partly because there are different parties, and partly because there was really little criminal conduct by the mother, and in any event not sufficient to shut out either the mother or the Central Authority to the extent asked.
Turning then to the issue of the mother's consent, the relevant regulations include Regulation 3, Regulation 13(1), Regulation 14(1)(a), Regulation 16(2)(a), and Regulation 16(3)(a). Regulation 3(1) provides that:
“A reference in these regulations to the removal of a child is a reference to the removal of that child in breach of the rights of custody of a person, an institution or another body, in relation to the child, if at the time of removal those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal of the child.”
Regulation 3(2) provides in identical terms with respect to the retention of a child. Regulation 13 is the regulation which explains how and why a Commonwealth Central Authority in this country is activated to bring applications such as the one bought here. Regulation 13(1) provides that:
“If the Commonwealth Central Authority receives an application in relation to a child who has been removed from a convention country to or retained in Australia and is satisfied that the application accords with the convention under regulations, the Central Authority must take action under the convention.”
I think it is clear that the expression "retention" in regulation 13(1) must be understood in the sense in which the term is described in regulation 3(2). Regulation 14(1) relevantly provides that:
“In relation to a child who is … retained in Australia, … the central authority may apply to a court in accordance with form 2 for”

various varieties of orders.
Regulation 16(2)(a) relevantly provides that:
“A court must refuse to make an order for the return of the child if it is satisfied that the retention of the child was not a retention within the meaning of the regulation.”

And finally, regulation 16(3)(a) relevantly provides that:
“A court may refuse to make an order to return a child if a person opposing return establishes that the person, institution or other body making application for the child's return was not actually exercising rights of custody when the child was first retained, or had consented or subsequently acquiesced in the child being retained in Australia.”

I think it is not easy immediately to reconcile all the provisions of those regulations. In particular, regulation 16(2)(a) imposes an obligation to refuse to order a return of a child if the court is satisfied that the retention was not a retention "within the meaning of these regulations". I take this to mean a retention in breach of rights of custody of a person, institution or other body when those rights were actually being exercised or would have been but for the retention. I think the logic of the convention obligations is that the reference in regulation 13(1) to an application received by the Commonwealth Central Authority in relation to a child "retained" in Australia must also be a reference to a child retained in breach of rights of custody when those rights were actually being exercised or would have been, (but for the retention). Likewise, the reference in regulation 14(1) to a child "retained" in Australia must be understood as a reference to a child retained in breach of rights of custody actually being exercised, or whose exercise would be occurring but for the retention. Regulation 16(2)(a) is self-defining in that it requires proof the relevant retention was a retention within the meaning of the regulations.
The construction of the regulations becomes more difficult when construing regulation 16(3)(a). That regulation creates a discretion to refuse to order the return of a child when the person opposing the application establishes either of the matters I have already described. Both legal representatives appearing in this matter ultimately submitted in argument that the expression "retained" in regulation 16(3)(a) could only and must mean "retained" in the ordinary sense of that word, rather than requiring that it be read in the expanded sense conditionally provided for in regulation 3(2).
Mr Parrott made the further (and not necessarily related) submission that the apparent disparity between the provisions of regulation 16(2)(a) which mandate a refusal when there was no retention "within the meaning of the regulations", and those of 16(3)(a) which create a discretion to refuse when rights of custody were not being exercised by the applicant (and would not otherwise have been exercised) can be explained as follows. This is that regulation 16(2)(a) requires proof that a retention is in breach of the rights of custody held by at least one of the group of a person, body or institution, which person, body or institution may not be the applicant for the order for return. His submissions pointed to the fact of other and recent applications in the Brisbane Registry of this Court by the central authority he frequently represents, in which applications there have been examples of there being both human persons and other "bodies" or institutions claiming rights of custody in removed or retained children. Those applications have included examples where the removal has been consented to by one such claimant, and opposed by another.
This has particularly occurred where a welfare authority in a convention country has been attempting to intervene in a family's care of a child, and one or both parents have left that jurisdiction with the child. That departure from the jurisdiction has then led to an application by the welfare authority to a central authority seeking orders for return. The facts in Director General v Buggle, an unreported decision of the Full Court of this court determined on 12 March 2001, provide another example of an application where there was more than one claimant for rights of custody, and where a critical issue was whether the claimant for those rights who was consenting to the relevant removal was in truth the actual applicant for the return of the relevant child.

Mr Parrott's submission does resolve the apparent dichotomy between the two regulations, because relevant evidence may show that there is more than one claimant for rights of custody, one of whom might have consented to a removal or retention elsewhere. The issue in such cases will then be whether the consenting claimant to rights of custody is the applicant claimant or not.
I think that resolution of that apparent dichotomy between the two regulations still leaves open the interpretation of the word "retention" and the word "removal" where those words appear in regulation 16(3)(a). I acknowledge, with respect, that the fact that both parties, through their legal representatives, have submitted that the word "retained" in regulations 16(3)(a) should not be understood in the sense provided for in regulation 3, is a strong incentive for accepting the argument. Nevertheless, I have come to the conclusion that "retained" in regulation 16(3)(a) should be understood in the sense provided for in regulation 3(2). My reasons for that conclusion include that this is what I understand regulation 3 actually requires, and that when regulation 16(3)(a) is read with Mr Parrott's other submission in mind, the term "retained" can easily be construed as defined in regulation 3. I add that Mr Parrott was asked what would be his argument and his application if, for example, the mother's change of mind had occurred on 25 June 2001, and not 25 January 2001. His response was that if so, and if the father thereafter refused to return the child to New Zealand, an application would be bought by a central authority on the mother's behalf, claiming a retention on and after 25 June 2001 in breach of her rights of custody.
This submission at first surprised me, but on reflection I consider it to be correct. In the hypothetical situation just described, and applying the concept of rights of custody described in the Full Court decision in Crowe (supra), what would have occurred would be that in the period between 19 and 22 January 2001, the mother exercised her rights of custody by choosing that J live in Australia. On the hypothetical example just given, she would exercise them again on 25 June 2001 by deciding he should return to New Zealand. If J were then retained in Australia, that retention would be in breach of those rights of custody, which would have continued to exist.
It is the retention in breach of those rights which would attract the provisions of the convention. The only consent which would be relevant would be any consent after 25 June 2001 to what had occurred, and the consent between the 22 January 2001 and 25 June 2001 would be irrelevant. In my judgment, the hypothetical situation I have described, which is one where there is an agreement to a period of indefinite residence in Australia, followed by a change of mind after five months, is not different in principle from a case where it is agreed beforehand that there be a period of residence in Australia for a specific period. In my opinion, a holding over at the end of an agreed specific period is simply a clearer example of a retention in breach of rights of custody, and clearer because the manner of the exercise of those rights of custody was stipulated at the outset.
I do not think a decision a child live in Australia for an indefinite period can extinguish a right to reverse that decision at a later time. The analysis of rights of custody made in Crowe, namely that those rights were still there for exercise when physical care had been delegated to another, necessarily implies the conclusion I have come to. In any event, I think that it is implicit in the nature of rights of custody that a decision genuinely made can be changed for genuine reasons, either because of changed circumstances or simply because of a change of view. I do not think the fact that a result can be called unreasonable, or contrary to a child's best interests, is necessarily evidence that a parent was not exercising rights of custody, although it could be evidence of that.
I do think that evidence of a plainly unreasonable decision may in some cases be evidence of the capricious exercise of a whim rather than the exercise of rights of custody, which rights plainly carry duties and responsibilities governing the manner and content of their proper exercise. Accordingly, rights of custody can exist and, where existing, those rights must necessarily include the right to a change of view about where a child should live. In my judgment, so long as the changed view expressed is not simply and obviously the capricious exercise of a whim, then those rights of custody must include the right to declare an end to an agreement that a child live somewhere else for an indefinite period.
Ms Carew has submitted that the requirement the responding party show a consent not just to the fact of retention, but to a retention in breach of rights of custody, places an impossible burden on a respondent. I was originally attracted to that argument, and I agree that it would ordinarily require a good deal of evidence to show that one parent has consented or acquiesced in conduct which denies that parent a right, possessed by the parent, to decide in what country a child should live. But on reflection I think that that is a policy of the convention, expressed in the regulations. On my construction of those regulations, a parent with rights of custody in another convention country can change his or her mind, revoke that consent, and demand the return of the child to that other convention country, and there is nothing this court can do except order that return.
I also think that the evidence in this case does not show that the mother was doing anything except attempting to exercise rights of custody when she changed her mind. That is, although her behaviour has been both dishonest and damaging to her relationship with J, it has not been simply an example of the capricious exercise of a whim, as distinct from an apparently genuine view that it was better for J to return to live in New Zealand. In this case the consequences of the construction I consider I am forced to adopt are that the respondent needs to show a consent after 25 January 2001, the date on which I consider the retention occurred.
I choose that date because it was then that the father opposed the mother's request for the boy's return, and only then was there a retention in breach of rights of custody the mother was attempting to exercise. I consider the child's presence in Australia from 22 January to 25 January was clearly with her consent and by the agreement of both parents, but I consider that her consent to that period of three days residence in Australia, while clearly established, is irrelevant. I do not think any consent after 25 January 2001 has been established, and I think that that is the relevant period. Accordingly, the father has failed to show the required consent, and if the father applies for residence orders for J in his favour or for more expanded or frequent contact, it will be the New Zealand courts which have to decide those applications.
If I had construed regulation 16(3)(a) as Ms Carew submitted, I add that I would have exercised the discretion thereby arising to order that J return to New Zealand in any event. I would have done so for two reasons, of which the first is that his brother is in New Zealand, and the evidence is that the two boys have a close bond. The second reason is that I think that ordering that return is a result that would accord more with the objects of the convention than not doing so. Apart from those two matters, there seems to me to be little to distinguish between two homes which would both offer J love and support, and it seems to me that J certainly should have much more regular contact with his father.

RECORDED NOT TRANSCRIBED

HIS HONOUR: I add that I consider in the circumstances I should not order that the father pay the mother's air fare to Australia, nor that the father pay J's return air fare to New Zealand. On the evidence, the mother says that that air fare has always been kept open for J, and I think the situation which has arisen substantially has occurred because of conduct of hers.

RECORDED NOT TRANSCRIBED

HIS HONOUR: I make orders in accordance with the draft provided by Mr. Parrott, such orders being as follows:
That the child, J born in November 1990, be returned to the country of New Zealand, and for the purposes of giving effect to this order:-
a.that the said child be returned on or before 4 May 2001;
b.that pending the said child, J born in November 1990, returning to New Zealand, the Respondent Father, , continue to be restrained and an injunction is hereby granted restraining him from removing or attempting to remove the said child from the Commonwealth of Australia;
c.that pending the return of the said child, J born in November 1990 to New Zealand, the Respondent Father, born in November 1967, be restrained, and an injunction is hereby granted restraining him, from changing the residence of the said child, J born in November 1990, from the premises where he and the said child are currently residing;
d.that subject to sub-paragraph (h) below, the Commissioner of the Australian Federal Police and all Officers of the Australian Federal Police retain the names of the Respondent Father, born in November 1967 and the said child, J born in November 1990, on the PACE Alert System at all international departure points in Australia;
e.that the said child, J born in November 1990, and the Respondent Father, be removed from the PACE Alert System by the Australian Federal Police upon receipt of a letter from an officer of the Director-General, Department of Families advising of the travel arrangements made for the said child to return to New Zealand, from 12.00 am on the date nominated for the said travel in the letter;
f.that the Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders;
g.that to facilitate the return of the said child, J born in November 1990 to New Zealand, the Registrar of the Family Court shall, upon receipt of a letter from an officer of the Department of Families advising of the travel arrangements made for the said child to return to New Zealand, release to Ms T of Department of Families or such person nominated by her, all current passports relating to the child for the purposes of the said child's return to New Zealand; and release the Respondent Father’s passport to him upon request.
h.that the Orders of Judicial Registrar Smith of 2 March 2001 be discharged insofar as they relate to the requirement of the Respondent Father to surrender to the Registrar of the Family Court, all current passports relating to himself born … November 1967;
i.that liberty to apply be granted to the Applicant to seek any further orders necessary to allow her to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order.

That each party have liberty to apply for any further direction or order.

______________________________

[2001] FamCA 547

26 April 2001

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Construction

Remedies

Natural Justice