In the Marriage of Agee - [2000] FamCA 1251

[2000] FamCA 1251

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT BRISBANE Appeal No. NA 33 of 2000
File No. BR 2262 of 2000

IN THE MATTER OF:

STEVEN WAYNE AGEE (Appellant / Husband)

and

FAY NOEL AGEE (Respondent / Wife)

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  Finn, Holden and Guest JJ.
Date of Hearing:                10 August 2000
Date of Judgment:             19 October 2000

Appearances:

Mr Galloway of Counsel (instructed by Messrs Barry & Nilsson, Lawyers, Level 21, 215 Adelaide Street, BRISBANE QLD 4000 as town agents for CA Bierre, Barrister and Solicitor, P.O. Box 13452, TAURANGA, NEW ZEALAND) appeared on behalf of the Appellant Husband.

Mr Westbrook of Counsel appeared on behalf of the Respondent Wife, whose address for service is C/o 18 Strombus Avenue, Trinity Beach, CAIRNS QLD 4879.

APPEAL SUMMARY

MATTER:  AGEE
NUMBER:  NA 33 of 2000 (BR 2262 of 2000)
CORAM:  Finn, Holden and Guest JJ
DATE OF HEARING:         10 August 2000
DATE OF JUDGMENT:      19 October 2000

CATCHWORDS: HAGUE CONVENTION – Regulation 16(3)(c) - meaning of the term “objects” – De L v Director-General New South Wales Department of Community Services (1996) 187 CLR 640 (1996) FLC 92-706 – De Lewinski v Director of Community Services (1997) FLC 92-737

This was an appeal by the husband against orders made by Jerrard J. on 5 April 2000 in proceedings between the Director-General, Department of Families, Youth and Community Care Queensland, as the State Central Authority (“the Central Authority”) under the Family Law (Child Abduction Convention)Regulations (“the Regulations”), and the wife. His Honour dismissed an application brought by the Central Authority pursuant to the Regulations for an order that the two children of the marriage, aged nearly 11 and 9, be returned to New Zealand.

The husband and the wife lived in Cairns from 1989 until 1996, when they moved to live in New Zealand. They separated on or about 1 July 1998. On 28 January 2000, without consulting the husband, the wife and the two children returned to live in Australia.

On 30 March 2000, an order was made for the preparation of a family report to assist in the determination the proceedings. That report was to be prepared by a Court Counsellor and was to address the issues of whether the children objected to being returned to New Zealand (so that the Courts of that country could determine where and with whom the children should live), and if so, their reasons for the objection, and the children’s level of maturity and cognitive development. After interviewing the children, the Court Counsellor concluded that the children objected to being returned for reasons which were “personal, age-appropriate and credible”.

The husband argued that the children had not “objected” in the relevant sense to being returned, but rather had only expressed a preference for remaining in Australia.

The sole question for determination by his Honour, and the sole issue for determination for the Full Court, was whether or not the wife had established pursuant to Regulation 16(3)(c) that the children “objected” to being returned to New Zealand, and had attained an age and degree of maturity at which it was appropriate to take account of their views. If the answer to that question was in the affirmative, then the Court nonetheless had to determine notwithstanding such a finding, whether it was, in the exercise of a residual discretion vested in the court, appropriate to order the children be returned to New Zealand (having regard to the purpose of the Regulations).

HELD, dismissing the appeal with costs:

The phrase “objects to being returned” in Regulation 16(3)(c) should not be construed in a strict and narrow sense - “no ‘additional gloss’ is to be supplied”: see the majority judgment of the High Court in De L v Director-General New South Wales Department of Community Services (1996-97) 187 CLR 640 (reported in (1996) FLC 92-706; (1995-96) 20 FamLR 390) (“De L (High Court) No. 1”).

The objection must be an objection to being returned to the country of the children’s habitual residence, not to living with a particular parent, although children need not articulate their objection in this manner: De Lewinski v Director of Community Services (1997) FLC 92-737 (“De L (Full Court) No. 2”) at 83,939.

His Honour properly addressed the construction of the expression “objects” and the argument that the children expressed a preference, as opposed to an objection. It was clear that the separate expressions used by the children when interviewed by the Court Counsellor were considered by his Honour, and were the language of objection expressed in an age-appropriate idiom.

Where a defence is made out under Regulation 16(3) for the non-return of a child, the Court has a discretion whether or not to order the return of the child: De L (High Court) No. 1, following Clarke v Carson (1996) 1 NZLR 349 at 351. The discretion must be exercised having regard to the subject matter and purpose of the Regulations. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion: see the majority judgment of the High Court in De L (High Court) No.1 (at 661). The discretion is necessarily a wide one which should not be limited by fixed criteria, for each case is necessarily dependent upon its own particular facts and circumstances.

It was open to his Honour to find the children objected to being returned to New Zealand and, in exercising his discretion, to refuse to order their return, having regard to the background of the children’s residence in both Australia and New Zealand, the removal of the children by the wife, the policy of the Convention and events that have occurred since the children have been brought to Australia.

REPORTABLE

THE APPEAL

This is an appeal by STEVEN WAYNE AGEE (“the husband”) against orders made by Jerrard J. on 5 April 2000 in proceedings between the Director-General, Department of Families, Youth and Community Care Queensland as the State Central Authority under the Family Law (Child Abduction Convention)Regulations (“the Regulations”), and FAY NOEL AGEE (“the wife”). (It will be convenient to refer in these Reasons for Judgment to that Department as “the Central Authority”).
By his orders, Jerrard J. dismissed an application brought by the Central Authority pursuant to the Regulations for an order that the children of the marriage of the husband and the wife, being [M], born 1989, and [E] born 1990, be returned to New Zealand. That application was brought by the Central Authority as a result of an application made by the husband to the Central Authority’s counterpart authority in New Zealand.
Given the decision of the Full Court in Panayotides (1997) FLC 92-733, no real question was raised before us as to the husband’s capacity to institute this appeal notwithstanding that he had not been a party to the proceedings before Jerrard J. The only issue raised was whether the husband needed leave to appeal and we indicated that to the extent leave was needed, we would grant it to the husband. No objection was raised by the wife to that course.
We also gave the husband leave to rely upon an amended Notice of Appeal. In that amended Notice (as also in his original Notice of Appeal), the husband sought orders, in summary, that the two children of the marriage be forthwith returned to New Zealand. The wife opposed the husband’s appeal, seeking to retain the orders of Jerrard J. of 5 April 2000.

BACKGROUND

The husband was born in the United States of America on 11 November 1942 and was 57 years of age at the time of the hearing. The wife was born in Zimbabwe on 26 March 1953 and was 46 years of age. The parties were married at Hawaii in the USA on 5 May 1987. Their elder child [M] was born in Seattle, USA in 1989 and was almost 11 years at the time of hearing.
Some six weeks after [M]’s birth, the parties moved to Cairns in Queensland where they lived until November 1996. They purchased the property at [TB]. Whilst at [TB], their son [E] was born in 1990. He was nine years and seven months of age at the time of the hearing. Both the children began their education at the [TB] School in Queensland.
The parties moved to New Zealand in November 1996 where they remained until the wife together with the two children left that country on 28 January 2000. They lived at two separate addresses whilst in New Zealand, the most recent one being at Omokoroa on the North Island. The parties separated on or about 1 July 1998.
The husband worked in the United States from late 1997 until some time in the first half of 1998 and following separation from the wife in July 1998 he lived at the family home in New Zealand until January 1999. Since that date, he worked and lived in Virginia, USA and visited New Zealand at least on four occasions that year for the purposes of contact with the children. He apparently also negotiated some aspects relevant to the parties’ marital separation. On 1 October 1999 the husband established a discretionary Children’s Family Trust which purchased two residential properties in Onernana, north of Tauranga. This was described by the wife as “… a remote holiday village in New Zealand”. It was his Honour’s understanding that the location of those holiday homes was not in any sense close or nearby to the home in which the wife and the children resided prior to her departure to Australia. Shortly prior to January 2000, the wife, who until then had been in full time employment, was made redundant.
On 28 January 2000, without first having sought or obtained the approval of the husband, the wife moved with the children to the jointly owned property at Cairns in Queensland. Shortly thereafter action was initiated in New Zealand on behalf of the husband which sought to take advantage of the provisions of the Convention on the Civil Aspects of International Child Abduction (“the Convention”). On 15 February 2000 the Director-General, Department of Families, Youth and Community Care Queensland (as Applicant) filed a Form 2 Application seeking (inter alia) by way of final orders that the two children be returned to the country of New Zealand.
On 17 February 2000, Judicial Registrar Smith in setting the proceedings down for hearing on 5 April 2000 made (inter alia) interlocutory orders which we summarise as follows:
1.That the wife forthwith surrender to the Registrar of the Family Court of Australia all current passports relating to herself and the two children.
2.That the wife be restrained from removing the two children from their current place of residence at [TB] in the State of Queensland.
3.That the wife be restrained from leaving the Commonwealth of Australia, and from removing or attempting to remove the children from the Commonwealth of Australia and that all Federal Agents of the Australian Federal Police and the Department of Immigration of Ethnic Affairs give effect to the order.
4.That the Commissioner of the Australian Federal Police place the names of the wife and the two children on the Airport Watch/PACE alert system at all international departure points in Australia.
Subsequently, upon application being made by the wife, an order was made on 30 March 2000 for the preparation of a family report. On the following day, interviews were conducted with the children by a court counsellor on the staff of the Court in its Registry at Cairns.
The proceedings, in accordance with authority, were conducted summarily before his Honour on 5 April 2000. No opportunity was sought by either counsel for the husband or the wife to cross examine the author of the report and neither of them claimed disadvantage through the lack of opportunity to do so.

THE FAMILY REPORT

As earlier stated, Judicial Registrar Smith made an order on 30 March 2000 which included:
“2.Pursuant to Regulation 26 of the Family Law (Child Abduction Convention) Regulations, a Court Counsellor to be nominated by the Director of Court Counselling at Cairns prepare and submit to the Court a report as to:
(a)Whether the children [M] born …1989 and [E] born … 1990 object to being returned to New Zealand so that the Courts of that country may determine where and with whom he, she or they should live;
(b)If the children and/or the child objects to being returned as aforesaid, the reasons for that objection;
(c)The degree of maturity of each of the children as to whether it would be appropriate to take account of his or her views;
(d)The cognitive development of each child;
(e)The emotional development of each child;
(f)Whether each child understands that the Courts of Australia may make an Order that he, she or they stay in Australia or be returned to New Zealand.
3.That such report be prepared by way of priority and be made available for the hearing on 5 April 2000 by 4 April 2000.”
The report was prepared by Ms Venus, a Family Court Counsellor at Cairns. It was clear that she was well aware that the issue to be addressed was whether the children objected to being returned to New Zealand, as opposed to some lesser, and therefore different question, for example whether they preferred to remain resident in Cairns. She introduced her report by reciting that it was prepared to assist the Court in determining whether the children “… should be returned to New Zealand so that the Courts of that country may determine where and with whom they should live”.
When dealing with [M], it was the opinion of Ms Venus that the child demonstrated an awareness and understanding of the situation in which she found herself. She reported that [M] had explained that her father had said that she and her brother had been “… kidnapped from New Zealand by their mother”, and that the Court would decide whether or not they were to return to that country. She said that [M] “… is very definite in her objection to returning to live in New Zealand” and is “… adamant that Cairns is where she wants to be”.
In the course of her report, Ms Venus had this to say:
“7.In testing the consistency of [M]’s objection to returning to New Zealand, I asked whether, if her father was to return to live in New Zealand, she might also reconsider. [M] had mentioned earlier in our discussion that she and her father used to be close, and would ‘talk a lot’, although less so now ‘because of the Court case and because of the divorce’. Nevertheless she again stated that she would not want to return, adding that she would like her father to visit the family in Australia.”
It was the opinion of Ms Venus that [M]’s stated reasons for not wanting to return to New Zealand were very personal, balanced and credible, and that she was unlikely to have been influenced to any significant degree by the wife or other parties. The child was emphatic that she would like her father to “… change his mind about the Court case, and just leave it so we can stay in Australia”. She added that even if the Court were to order her to return to New Zealand, she “… wouldn’t budge”.
Ms Venus reported that the child [E] presented “… as an intelligent, articulate young boy, who, like his sister, was able to explain the reason for the current proceedings as ‘Dad wants us to live in New Zealand’”. She reported that [E] expressed strong objections about returning to New Zealand. It was her opinion that the reasons advanced by [E] for preferring to remain in Australia “… were not about his mother, but personal, well-considered reasons of his own”.
Ms Venus tested the consistency of [E]’s objection to returning to New Zealand. She reported that he had mentioned during the interview that the relationship between himself and his father was “… really good”, and that his father used to visit them during the school holidays in New Zealand. She said that [E] indicated that he would not be prepared to return to New Zealand even if his father resumed residence there. She further reported that when asked if [E] would return if his mother was able to find a good job and wanted to go back herself, “… [E] responded with ‘she’d have to drag me’”.
In her summary and conclusion, Ms Venus had this to say:
“20.Although only 11 and 9 years of age respectively, [M] and [E] are articulate, intelligent children who have been able to formulate and clearly state their reasons for objecting to a return to New Zealand, despite a fondness for their father which they both expressed during interview. Moreover, when tested, the children have maintained the consistency of their responses.
21.While it is possible that the children may have been subject to their mother’s influence in this matter to some degree, particularly in the relative absence of their father over the past two years, the objections they express to returning to New Zealand are personal, age-appropriate and credible.
22.Despite the children’s relative maturity and intelligence, in the reporter’s opinion, it is unlikely that they would have the sophistication to discriminate between the Courts of Australia and New Zealand, or that they would have a view or preference regarding where their matter is heard.”

THE JUDGMENT OF THE TRIAL JUDGE

It was not contested by the wife that the Central Authority had taken all relevant administrative and formal steps or that the application was not brought appropriately by and on behalf of the Central Authority pursuant to reg 13 of the Regulations. Nor was it contested that the wife had, unbeknownst to the husband, removed the children from New Zealand on 28 January 2000, that the children were habitually resident in New Zealand immediately prior to their removal and in the result, that the husband was exercising rights of custody pursuant to s 3 of the Guardianship Act 1968 (NZ) immediately prior to their removal from that country.
His Honour quickly focussed upon the real question, which was whether or not the wife had established pursuant to reg 16(3)(c) that the children “objected” to being returned, and had attained an age and degree of maturity at which it was appropriate to take account of their views. That too was the sole issue on appeal for our determination.
His Honour considered, and correctly so, the purpose of the Convention and properly acknowledged that it was common place that parents who removed children from one residence to another will tell the Court that the children love their new residence and that they were very happy with their new home and school. In those circumstances, his Honour acknowledged that care should be exercised when dealing with applications for the return of children under the Convention when it is said that the children “object” to being returned. His Honour further acknowledged that trial Judges are obliged to place great weight on the objects of the Convention and correctly pointed out that the very purpose of the Convention is to avoid having courts in one country debate:
“… whether it is in the children’s best interests to remain in that country or to be returned to the other, and instead the purpose is to ensure that it is the Courts of the country from which they have been taken that make that decision. The countries which have signed that convention have, as their goal in so doing, avoidance of debates about the children’s best interests in the country to which they have been taken, and instead insist upon the right of the authorities in the country from which the children have been taken to decide the issues of the children’s future.”
His Honour referred to the construction placed upon the word “objects” in reg 16(3)(c) by the majority judgment of the High Court in De L v Director-General New South Wales Department of Community Services (1996-97) 187 CLR 640 (reported in (1996) FLC 92-706; (1995-96) 20 FamLR 390) (“De L (High Court) No. 1”). The High Court was there considering the majority judgment of the Full Court of this Court in Director-General, Department of Community Services v De Lewinski (1996) FLC 92-674 (“De L (Full Court) No. 1”) who had held that there should be “… a strict and narrow reading of the exceptions” to the obligation imposed to return children, and the proposition derived from a number of decisions of this Court (and courts of other jurisdictions), expressed by Kay J in the following terms, namely:
“The word ‘objects’ imports a strength of feeling which goes far beyond the usual ascertainment of the wishes of a child in a custody dispute”.

His Honour correctly identified that such an approach was disapproved of by the High Court, that the phrase “the child objects to being returned” should not be construed in that manner and that, (inter alia) “… no ‘additional gloss’ is to be supplied”.
Having considered the Full Court decision in Director-General, Department of Community Services v Crowe (1996) FLC 92-717 (at 83,640) his Honour correctly identified the travel of De Lewinski’s case back to the Full Court which is now reported as De Lewinski v Director of Community Services (1997) FLC 92-737 (“De L (Full Court) No. 2”). There, the Full Court said:
“It is clear that the objection must be an objection to being returned to the country of the children’s habitual residence, here the United States of America, not to living with a particular parent, here the husband”.
…
“We would not suggest that children must articulate that they object to being returned to the country of their habitual residence for the purpose of enabling the courts (sic) of that country to resolve the merits of any dispute as to where and with whom they should live in order to come within the provisions of reg. 16(3)(c). That is not the language of children, and the Court should not expect them to formulate and articulate their objection, if they had objected in the relevant sense, in that manner. The Court must have regard to the whole of the evidence and determine, no matter how the children articulate their views, whether the children object in the relevant sense”. (at 83,939).
His Honour then considered the terms of the order for the preparation of a report pursuant to the provisions of reg 26, and to which we have already referred, emphasising, and properly so, that the relevant “objection” is an objection to being returned to the country of habitual residence for the purpose of the regulations, “… not to living with a particular parent”.
In his analysis of the report, his Honour emphasised those matters that he considered appropriate. He dealt with each of the two children and of various matters they informed Ms Venus. When dealing with [M], his Honour correctly identified those matters of which she informed Ms Venus and which his Honour found to be both relevant and accurate. He referred to paragraph 5 of the report, namely:
“Now she is once again residing in Cairns, [M] is very definite in her objection to returning to live in New Zealand. While she claims that she enjoyed exploring New Zealand in the early days of their move, and appreciates that there are good surf beaches on which to boogie board, and no dangerous animals, [M] is adamant that Cairns is where she wants to be. Her reasons include the fact that in New Zealand she has only a few friends and felt that a lot of people didn’t like her because she was an American. She said that she ‘didn’t fit in’ and was glad to return to Cairns where she has lots of friends, some of whom remembered her from Grade 2.
She added that she and [E] were able to move back into their own house and return to their old school, and that it was tropical and warm instead of being cold as it had been in New Zealand. She said ‘I love it here’. She mentioned familiar play areas and listed a string of neighbourhood children with whom she was able to resume friendships. She described having been recently selected to play in a representative basketball team. When asked if her father was to return to live in New Zealand, which he might consider, she again stated that she did not want to return, saying she would like her father to visit the family in Australia. She had previously described how she and her father used to be close and would talk a lot, although they did so less now because of the Court case and the divorce.”
His Honour then correctly identified the court counsellor’s opinion that:
“[M]’s stated reasons for not wanting to return to New Zealand were, in the author’s opinion, very personal, balanced and credible, and unlikely to have been influenced to any significant degree by her mother or other parties.”
Furthermore, his Honour added that the reasons expressed by [M] were:
“… all descriptive of her view of her life in Cairns independent of the fact of her mother living there, and her view of her life in New Zealand. The report writer added that [M] said that even if the court were to order her return to New Zealand, she wouldn’t budge. I think that that is a description of a child who does object to being returned to New Zealand and is not expressing a preference for living with a particular parent. The report writer did not explore whether those two matters were linked, as is often the case, but certainly drew out from the child clear objections to being returned to what had been her country of habitual residence. It appears the child is also aware of the conflict between the parents and her father’s view about where the children should reside, as well as the fact that this court will make that decision.”
When dealing with [E], his Honour correctly identified those matters expressed by the child to Ms Venus of an historical nature and that [E] “… objected strongly when asked how he felt about returning” to New Zealand, giving reasons in support of his stated position. His Honour said that [E]:
“… gave the impression of being very settled in his present environment, and his reasons for wanting to stay were thought genuine and age appropriate. The report writer noted that his reasons were not about his mother, but, as with his sister, personal, well considered reasons of his own. The report writer tested the consistency of his view by asking about moving to New Zealand if his father returned to live there. [E] had said that the relationship between himself and his father was really good. [E] said he did not want to go back to New Zealand if his father lived there, and asked whether he would be willing to go back if his mother was able to find a good job there for herself and she wanted to go back, [E] replied, ‘She’d have to drag me’.”
His Honour concluded “… that the children presented intelligent, articulate, age appropriate reasons for objecting to returning to New Zealand, which they maintained during the interview” and that both children expressed an objection to being returned to New Zealand.
It was his Honour’s view that the description of reasons for not wanting to return to New Zealand and to remain in Australia demonstrated a preference on [E]’s part for the educational system offered in Australia, rather than New Zealand “… insofar as the school teachers and friends are concerned, and for other facilities and features of the environment of life here as compared to New Zealand”.
His Honour then identified the issue of whether or not the children objected to being returned for the purpose of having the New Zealand courts determine the matter, as opposed to any other court. He noted the observation of Ms Venus that:
“Despite their relative maturity and intelligence, it was unlikely they would have the sophistication to discriminate between the courts of Australia and New Zealand, or that they would have a view or preference regarding where the matter is heard.”
His Honour accepted that “… as a fair and intelligent comment and assessment …” by Ms Venus consistent with the children’s expressed views. His Honour then concluded as follows:
“… I consider that the statement by the High Court that no additional gloss is to be supplied and the citation immediately after of that part of the judgment in Urness and Minto, which I now repeat, that the child must object to returning to the country from which it was wrongfully removed in the circumstances envisaged at the time, should lead me to the conclusion that these children have expressed an objection within the meaning of Regulation 16(3)(c) to being returned.”
His Honour was satisfied that the children had attained, despite [E]’s youthful age, a sufficient degree of maturity and age at which it was appropriate for him to take their views into account. He correctly recounted that [M] appeared factually accurate about significant steps in her own life surrounding the move from Australia to New Zealand, the circumstances in which it occurred and also significant events in the lives of her parents. She was well informed about the father’s attitude to her residence and his Honour concluded:
“… Accordingly, I think that her accuracy about other significant events in her life means that I should accord weight to her expressed reasons for wanting to remain in this country and not wanting to go back to the other”.
In relation to [E], his Honour found that he too was accurate in relation to family and personal matters he had discussed with Ms Venus and concluded that it was only appropriate:
“… if the older child’s objection is clearly established as falling within the terms of the regulations it would be an absurdity to separate the two children because of the less mature way in which [E] expressed his views.”
In the course of his judgment, his Honour commented that the Full Court of this Court had specifically advised that it is not suggested that children must articulate that they object to being returned for the purpose of enabling the courts of the country to which their return is sought to resolve the merits of any dispute and that, as the Full Court in De L (Full Court) No. 2 had identified,
“… that is not the language of children and that I am to have regard to the whole of the evidence and determine, no matter how they articulate their views, whether they object in the relevant sense. I am satisfied that they do, and their objection is to being returned to New Zealand and not to their father.”
His Honour then went on to consider the issue of residual discretion, and the arguments urged upon him by the Central Authority in relation to the exercise of that discretion. Such arguments included the fact that the husband had acquired two houses through his Trust in New Zealand and that there had been ongoing property negotiations there for some time. His Honour commented that overlooked the fact that some of the negotiations must also concern the matrimonial home at [TB] in Australia. He was not persuaded that the matters advanced by the Central Authority were sufficient, in the exercise of his discretion, to cause him to order the children be returned to New Zealand notwithstanding their objection. His Honour did not see the fact that the husband had expended moneys on the creation of a Trust structure controlled by him which had purchased two homes in a holiday location as a particularly strong reason. Further, he understood the husband’s proposal that the children would be placed in a motel during which time he would seek to end the tenancy of one of the holiday homes. His Honour noted that:
“… This would require the children to leave the area and school with which they are familiar to go to an apparently more remote one with which they are, it seems, relatively unfamiliar and to an entirely new school which they did not previously attend”.
His Honour identified the arguments advanced by Mr Westbrook of Counsel, who appeared on behalf of the wife that:
·     the children have now lived in their present environment for some considerable period of time and are familiar with it;
·     the wife has no current employment in New Zealand;
·     the wife is more financially secure in Australia;
·     the wife and the children reside in a residence that the parties own;
·     the wife has the benefit of social security in Australia;
·     there is no home with which the children are familiar and to which they could be returned in New Zealand (where the husband has not actually lived since January 1999);
·     his contact is not, on the evidence going to be or likely to be adversely affected by their living in Australia, as opposed to living in New Zealand; and
·     the evidence did not show that the husband had any residence in New Zealand.
In conclusion, his Honour had this to say:
“In those circumstances, being satisfied that both children object to being returned, being satisfied that both are at an age and degree of maturity at which it is appropriate to take into account their views, I am satisfied that the circumstances are strongly in favour of an order that they remain in a far more familiar environment in which I do not see why their contact with their father is in any way lessened, minimised or damaged as compared to that which it would be in New Zealand. Accordingly, the application is dismissed.”

GROUNDS OF APPEAL AND SUBMISSIONS

The husband relied upon the following amended Grounds of Appeal:
“1.The Learned Trial Judge erred in determining that the word ‘objects’ found in Regulation 16(3)(c) of the Family Law (Child Abduction Convention) Regulations 1986 was sufficient to describe what was on the facts of this case a mere preference expressed by young children as to their place of residence.
2.The Learned Trial Judge erred in determining that either of the children had attained an age and degree of maturity where it was appropriate to take account of their views.
3.The learned Trial Judge failed in any case properly to exercise the discretion that arose (sic) in him even if he had rightly decided the issues described in Grounds 1 and 2 (which is denied):
(a)he failed to give any or any proper consideration to the objects and purposes of the Convention and the Regulations made pursuant thereto;
(b)he failed properly to take into account that the issues of residence, contact and the children’s relocation to Australia were more properly justiciable in New Zealand as the place of interrupted residence;
(c)he gave inappropriate weight to the report of Ms. Marilyn Venus, the Family Court counsellor in Cairns.
4.The Learned Trial Judge erred in effectively deciding the issue of the Respondent’s relocation and in so doing departed from the matter which had been submitted to him to decide.”
It was the submission of Mr Galloway, who appeared on behalf of the husband, that there was nothing in the report of Ms Venus to show other than that the children “… preferred to live in Cairns”, which is not the same as the children “… objecting to return to New Zealand so that a decision might there be made as to where they should live”. He accepted that “… a Court should not expect children to necessarily express their views within adult formulations” (per Nicholson CJ in De L (Full Court) No. 1 at 83,016). He submitted that whilst authority directs that the word “objects” must be given its plain meaning, it is right to bear in mind that there may be circumstances that indicate the expression of a mere “preference” may be no more than an expression in conformity with the opinions and actions of the custodian. In essence, he submitted that his Honour conflated the meaning of ‘objects’ in the sense that it meant ‘prefer’, within the meaning of the Regulations.
Somewhat curiously, Mr Galloway submitted that his Honour gave the report a legal meaning it cannot have, and that it is never sufficient to proffer a report of this kind (namely that provided by Ms Venus) as conclusive of whether a child “objects in a relevant sense”. He submitted that the finding of whether the child “objects” is a finding of fact and which was not open to his Honour on the evidence before him.
Mr Galloway referred to the report of Ms Venus and her opinion that “… the objections (the children) expressed to returning to New Zealand are personal, age appropriate and credible”. He submitted that this is not enough to underpin an order that the children be permitted to remain in Australia, “… for they are observations that may well be true in every case”. Mr Galloway made the observation that it would be surprising if children, who have travelled to an agreeable place with a parent they loved, would say otherwise. Accordingly, he submitted that his Honour ought to have searched for some other or additional basis to justify a refusal to make an order for their return to New Zealand. He submitted that a “ … taking into account” of the children’s views involved recalling that they had been in the wife’s sole care for several years and, particularly in the case of [E], adopted some of her personal views regarding the husband .
In the course of submissions, Mr Galloway put that the husband did not have an opportunity to respond to the wife’s affidavit of 4 April 2000. He accepted however, for such was the fact, that no adjournment was sought by the Central Authority at the hearing before his Honour, nor was any complaint made in this regard.
Mr Galloway submitted that the children misunderstood the basis of any return by them to New Zealand and that the children ought to have been asked, (something along the lines) “… would you go back to New Zealand to let the court decide?” He criticised the report of Ms Venus, and submitted that the questions asked by her of the children were consistent with a belief they would be returning to New Zealand on a permanent basis and not to adjudicate where they should live.
On the issue of discretion, Mr Galloway submitted that even if his Honour had rightly determined that the children properly objected to being returned to New Zealand, and that they were of an age and degree of maturity where he ought to take that view into account, he was then bound to exercise a discretion which, “… if exercised properly, … would lead him to order that the children remain in Australia” (sic). It was submitted, somewhat bravely, that his Honour exercised “… no discretion at all” and that his Honour “… did not turn his mind to the objects and purposes of the Convention and of the Regulations”. That submission was plainly wrong.
Finally, Mr Galloway submitted that in his reasons for judgment, his Honour failed to consider that as the place of habitual residence of the children, New Zealand with its court system was “… the appropriate place to determine what variations should be ordered concerning residence and contact.” The somewhat bold submission was made that his Honour appeared to have moved from an adjudication of a Hague Convention application to a hearing of a relocation case and which was properly the province of a court in New Zealand.
In reply, Mr Westbrook of counsel, referred firstly to the terms of the order made for the preparation of a report and which made it clear that the issue to which Ms Venus was directed to turn her attention, was whether the children had an objection “… to being returned to New Zealand so that the Courts of that country may determine where and with whom he, she or they should live”. He submitted that there could be no serious suggestion that Ms Venus was unaware that the issue to be addressed was whether the children “object” to being returned to New Zealand as opposed to some lesser, and therefore different question, for example whether the children “prefer” to remain resident in Cairns. He pointed out that “… [t]he proceedings, in accordance with authority, were conducted summarily” and no opportunity was sought by either counsel before his Honour to cross examine the author of the report. Furthermore, no counsel claimed disadvantage through the lack of opportunity to do so.
Mr Westbrook submitted that the report of Ms Venus addressed the matters discussed with the children and reproduced passages of what passed between them so as to give “… insight to the unequivocal opinion expressed by her”. He submitted that his Honour specifically addressed his attention to the relevant test and to the argument that the children expressed a “preference” as opposed to an “objection”. He pointed out that the submissions on behalf of the husband in this regard ignored, in the case of [M], the observation that:
“She added that even if the Court were to order her return to New Zealand, she ‘wouldn’t budge’,”
and, in relation to [E], the observation:

“Testing further, I asked if he would return if his mother was able to find a good job and wanted to go back herself. [E] responded with ‘She’d have to drag me.”

It was submitted by Mr Westbrook that this was the language of objection expressed in the age appropriate idiom of these children.

He submitted that his Honour gave consideration to the report of the interviews and properly concluded, “… without relying only upon the expression of opinion by the Court counsellor, but no doubt influenced by it”, as follows:
“In the second Full Court decision in De Lewinsky (sic) we were all reminded that that is not the language of children and that I am to have regard to the whole of the evidence and determine, no matter how they articulate their views, whether they object in the relevant sense. I am satisfied that they do, and their objection is to being returned to New Zealand and not to their father.”
On the issue of discretion, Mr Westbrook submitted that his Honour was well aware of the significance of the purpose of the Convention and made specific reference to it. He pointed out that his Honour considered relevant matters arising from the facts before him and determined in the exercise of his discretion in this atypical case, that it was appropriate to exercise his discretion in favour of giving sway to the children’s expressed objection. In so doing, his Honour reached a decision, it was submitted, which fell squarely within the generous ambit into which the exercise of his discretion might appropriately fall.

CONCLUSION

It is helpful to recall that the underlying purpose of the Convention is set out in the preamble and Article 1. The preamble includes the following expression of desire by the States which are signatory to the Convention:
“… to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.”
Article 1 of the Convention deals with the objects which include:
“(a)to secure the prompt return of children wrongfully removed to or retained by any Contracting State; and
(b)to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
Where there has been a wrongful removal, the duty of the Court to order the return to the country of habitual residence is “almost absolute”. See Hanbury-Brown (1996) FLC 92-671 at 82,976. That is, the purpose and intent of the Convention must be accorded significant weight. The issue of the welfare or best interests of the child as the paramount consideration does not apply in considering applications under the Regulations. See McCall and McCall: State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC 92-551 at 81,510-511.
Regulation 16 deals with orders for the return of children by courts of this country. It is provided by reg 16(1) as follows:
“16(1)Subject to sub-regulations (2) and (3), on application under regulation 14, a court must make an order for the return of a child:
(a)if the day on which the application was filed is less than 1 year after the day on which the child was removed to, or first retained in, Australia; or
(b)if the day on which the application was filed is at least one year after the day on which the child was removed to, or first retained in, Australia unless the court is satisfied that the child is settled in his or her new environment.”
In respect of the matters required to be established in reg 16(1) it was not denied that the application had been filed less than one year after the day in which the children were removed to Australia.
Regulation 16(2) provides:
“16(2)A court must refuse to make an order under sub-regulation (1) if it is satisfied that:
(a)the removal or retention of the child was not a removal or retention of the child within the meaning of these Regulations; or
(b)the child was not an habitual resident of a Convention country immediately before his or her removal or retention; or
(c)the child had attained the age of 16; or
(d)the child was removed to, or retained in, Australia from a country that, when the child was removed to, or first retained in Australia, was not a Convention country; or
(e)the child is not in Australia.”
As acknowledged by his Honour, the children were habitually resident in New Zealand immediately prior to their removal and the husband was exercising “rights of custody” by virtue of s 3 of the Guardianship Act 1968 (NZ). It was also properly conceded by Mr Westbrook that the application by the Central Authority was appropriately brought before the Court pursuant to reg 14 and that nothing existed that brought the facts of the case within reg 16(2) requiring his Honour to refuse to make the order sought.
Regulation 16(3) provides:
“16(3)A court may refuse to make an order under subregulation (1) if a person opposing return establishes that:
(a) …
(b)there is a grave risk that the return of the child to the country in which he or she habitually resided immediately before the removal or retention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child’s views; or
(d)…”
By her Form 2A Answer and Cross-application the wife pleaded that she and the children would be “… subject to psychological harassment, intimidation and economic harassment” if they were placed in a position where they must return to New Zealand (reg 16(3)(b)). That argument was not proceeded with before his Honour.
The sole question for determination by his Honour was whether or not the wife had, pursuant to reg 16(3)(c) established that the children objected to being returned to New Zealand, and had obtained an age and degree of maturity at which it was appropriate to take account of their views. If the answer to that question was in the affirmative, then the Court nonetheless had to determine notwithstanding such a finding, whether it was, in the exercise of a residual discretion vested in the court, appropriate to order the children be returned to New Zealand.
The relevant time for consideration of a child’s objection to being returned to New Zealand is, in our view, at the time of the hearing of the application brought by the Central Authority. There has been some conflict in the past about this. See Emmett v Perry; Department of Family Services and Aboriginal and Islander Affairs (1995) FLC 92-645 at 82,526 compared with Director of Community Services v Toomey (O’Ryan J, SY9546 30 April 1997, unreported at 15). These authorities were considered by Lindenmayer J in Director-General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785 who said, when considering reg 16(3)(c):
“3.58The first issue, which he (counsel for the Central Authority) identifies there, is the question: at what point of time ought the evidence establish that the child holds the relevant objection? Mr Green cites, firstly, from Jordan J again, in Emmett v. Perry (supra) at 82,526 where his Honour said this: -
‘I accept the submission of the Commonwealth Attorney-General that the most relevant time for consideration of this issue is to examine the circumstances at the time of the wrongful retention (see Murray v. Director, Family Services (ACT) (1993) FLC 92-416 at p. 80,253. In my view there would need to be cogent and telling evidence that the children’s objection was so strong as to justify a wrongful retention of the children in March of 1995. … It would be dangerous and unsatisfactory to place significant weight upon the subsequent development of the children’s wishes in the background of one parent having made a unilateral decision in defiance of an existing custody order and with the children being under the sole influence of that competent parent who would necessarily be in a position to engage in active or passive manipulation of the children wrongfully retained’.
3.59Mr Green also refers to a passage from the judgment of the Chief Justice and Fogarty J, with whom Finn J. agreed, in Murray v. Director, Family Services (ACT) (1993) FLC 92-416 at 80,253, although he points out that in making the statement referred to, the Court there was looking at reg 16(3)(a) not reg 16(3)(c), but he submitted that the quotation applies generally to all defences set out in reg 16(3). The relevant quotation from that judgment was this:-
‘Remembering for the purposes of the Regulations that removal encompasses both removal and retention within the meaning of the Hague Convention, it is nevertheless clear that the Court is being asked by the sub-regulation in the case of removal, to look at the time when the removal occurred, and in the case of retention to look at the situation at the time the retention first occurred’.
3.60However, Mr Green also refers, quite properly, to a decision of O’Ryan J in the case of Director of Community Services v. Toomey, an unreported decision handed down by his Honour in this Court on 30 April, 1997, in which his Honour, at p. 15, said this:-
‘It was submitted on behalf of the authority that the most relevant time for considering whether or not the child objects is at the time of wrongful removal (Central Authority and Perry; Attorney-General for the Commonwealth (Intervener) (1996) 20 Fam. L.R. 380 at 388 per Jordan J). With great respect I do not accept that this is the relevant time. In my opinion, the relevant time to consider the defence is at the time of the hearing of the application, although, in doing so, it may be relevant to take into account what, if anything, was the objection at the time of the wrongful removal.’
Needless to say, Mr Green submitted that I should prefer Jordan J’s approach to that of O’Ryan J.
3.61I must say that I prefer O’Ryan J’s interpretation of the regulation. The regulation is dealing specifically with what a Court hearing an application should or should not do, and reg 16(1) firstly provides, as a general rule, that, subject to sub-regs. (2) and (3), on an application under reg. 14, the Court must make an order for the return of the child. Subregulation (3) then contains a number of exceptions to that mandatory rule, that is to say it provides for circumstances in which the Court may, notwithstanding sub-reg (1), refuse to make an order if the person opposing the return establishes certain facts. And one of the matters which such a person may establish, so as to invoke the Court’s jurisdiction to refuse to make a return order, is:-
‘That the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child’s views’.
3.62The ordinary language of the regulation seems to me to refer, quite simply and specifically, to the time of the hearing, not to some antecedent time. After all, the Court is called upon to exercise its discretion at the time of the hearing not at some other time, and it would appear to me to be artificial to interpret that as a requirement that, somehow or other, by some means which would escape me, a party were required to establish that at some point in the past – in this case almost two years ago – the child would have objected to being returned to New Zealand had he been asked. To me, that seems an impossible interpretation, and accordingly I adopt the interpretation to which I have referred. I therefore hold that the relevant time for considering whether the child objects is the date of the hearing”. (at 84,675-676)
Although this issue was not debated before the trial Judge, it was raised in the course of argument before us. It was accepted by both counsel that the relevant time for considering a child’s objection is the date of the hearing. In our view, such an approach embraced good common sense. The fact that this necessarily means that the Court may receive evidence of a child’s view which had developed during the period since the wrongful removal or retention is merely a further factor for consideration by the trial Judge to be weighed in the assessment of evidence concerning matters relevant to reg 16(3)(c). Such matters would necessarily include a consideration of the fact that a child was under the sole care or influence of one parent in the absence of the other and for the need to be otherwise alert to issues such as passive or active manipulation. In our view, to suggest that it would be dangerous and unsatisfactory to place weight on a child’s wishes that may have developed during the period of any wrongful retention overstates the position.
Despite the underlying purpose and intent of the Convention which must be accorded significant weight, it is equally important to remember that the Convention, in its adherence to the summary return of children whose future should be dealt with in another jurisdiction, nonetheless makes provision for specific consideration of the welfare of the particular child with whom the requested state is concerned where the threshold has been crossed and the interests of that child require the Court to take another course than summary return under reg 16. It is to be recognised however that these are narrow exceptions.
The argument before his Honour entirely rested on reg 16(3)(c) and which involves a dual exercise. Firstly, it is necessary to demonstrate a prima facie case and if so demonstrated, the Court goes on to consider, in the exercise of its discretion, whether to return the children to New Zealand. Any consideration arising pursuant to that provision must nonetheless be undertaken having regard to the purpose of the Regulations, namely to enable the performance of the obligations of Australia under the Convention and to secure the prompt return of a child wrongfully removed or retained in a contracting State and which is, as we earlier said, almost absolute. Having regard to the overall content of his Honour’s judgment, we have no doubt that he had this well in mind.
The expression that the “… child objects to being returned” (emphasis added) in reg 16(3)(c), so as to achieve the clear object of the Convention was considered by the High Court in De L (High Court) No. 1. The Court there considered the approach of the majority of the Full Court (De L (Full Court) No. 1) that there should be a “… strict and narrow reading” of what it identified as the exceptions to the obligation imposed upon the Court to order the prompt return of the abducted child to the jurisdiction of habitual residence and also the acceptance by the majority of the Full Court of the proposition found in Re: R (A Minor: Abduction) [1992] 1 FLR 105 at 108, namely:
“… The word ‘objects’ imports a strength of feeling which goes far beyond the usual ascertainment of the wishes of the child in a custody dispute”.
(See De L (Full Court) No. 1 at 83,027 and 83,025-6.)
The High Court (per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) in the setting of Article 13 of the Convention had this to say:
“In this setting there is no particular reason why reg 16(3)(c) should be construed by any strict or narrow reading of a phrase expressed in broad English terms, such as ‘the child objects to being returned’. The term is ‘objects’. No form of words has been employed which would supply, as a relevant criterion, the expression of a wish or preference or of vehement opposition. No ‘additional gloss’ is to be supplied.” (at 655)
(Article 13 of the Convention concerns objection by the child and is the foundation for reg 16(3)(c).)
Their Honours went on to consider the judgments of the Court of Session in Urness v Minto (1994) SLT 988, and had this to say:
“… Section 1 of the Child Abduction and Custody Act 1985 (UK) relevantly provided that the provisions of the Convention, set out in a Schedule to the statute, were to ‘have the force of law in the United Kingdom’. Accordingly, the Court was construing directly the terms of Art 13. At first instance, Lord Penrose said (at 993):
‘The expression (‘the child objects to being returned’) is to be applied in its ordinary literal sense. The child must object to returning to the country from which it was wrongfully removed in the circumstances envisaged at the time. The questions were whether the child objected to being returned and whether the child had attained an age and degree of maturity at which it was appropriate to take account of its views, these being matters of fact to be determined in the light of the information before the Court.’
A reclaiming motion was dismissed. The opinion of the court was delivered by Lord Justice-Clerk, Lord Ross. His Lordship [(1994) SLT 988 at 998] applied the following statement of the principle by Balcombe LJ in S v S (Child Abduction) (Child’s Views) (1993) Fam. 242 at 250.
‘[T]he return to which the child objects is that which would otherwise be ordered under Art 12, viz. an immediate return to the country from which it was wrongfully removed, so that the courts of that country may resolve the merits of any dispute as to where and with whom it should live. There is nothing in the provisions of Art 13 to make it appropriate to consider whether the child objects to returning in any circumstances.’
Balcombe LJ had continued [(1992) 2 FLR 492 at 499-500]:
‘Thus, to take the circumstances of the present case, it may be that C would not object to returning to France for staying access with her father if it were established that her home and schooling are in England, but that would not be the return which would be ordered under Art 12’.
In New Zealand, it has been said, dealing with the equivalent provisions in ss 12 and 13 of the Guardianship Amendment Act (1991) (NZ) (Clarke v Carson (1996) 1 NZLR 349 at 351. This passage was accepted without challenge by the New Zealand Court of Appeal in Andersen v Central Authority for New Zealand (unreported; 11 June 1996) at 8):
‘Section 13 sets out the only circumstances which constitute grounds for the refusal of the order for return. Where those grounds are made out to the satisfaction of the court by the person resisting the order for return (here, the mother), the consequence is not that the order will be refused but that the Court is no longer obliged to return the child but has a discretion whether or not to do so. That discretion must be exercised in the context of the Act under which it is conferred and the convention which it implements and schedules. See Re. A (Minors) (Abduction: Custody Rights (1992) Fam. 106 at 122-123, per Lord Donaldson of Lymington MR). It therefore requires assessment of whether decisions affecting the child should be made in the Court from the country from which the child has been wrongfully removed or the country of the court in which it is wrongfully retained. That requires consideration of the purpose and policy of the Act in speedy return and consideration of the welfare of the child in having the determination made in one country or the other.’
Further, as was pointed out by Nicholson CJ in the present case, the policy of the Convention is not compromised by hearing what children have to say and by taking a literal view of the term ‘objection’. That is because it remains for the Court to make the critical further assessments as to the child’s age, maturity and whether in the circumstances of the case the discretion to refuse return should be exercised (De L (1996) FLC 92-674 at 83,017).
Regulation 16(3)(c) fell for application in this case upon the construction indicated by Nicholson CJ and in the authorities, to which we have referred above, from Canada, Scotland, England and New Zealand. It follows that the majority of the Full Court misconstrued what had been the task of the primary judge in applying reg 16.” (at 655-657)

The High Court ordered that the proceedings be remitted for re-hearing. That, however was not the end of the matter for it soon found its way back again to the Full Court. (See De L (Full Court) No. 2 per Nicholson CJ, Ellis and Warnick JJ.)
That second Full Court (De L (Full Court) No. 2) (after returning to the High Court decision) had this to say:
“It is clear that the objection must be an objection to being returned to the country of the children’s habitual residence, here the United States of America, not to living with a particular parent, here the husband. However, as was pointed out by Balcombe LJ in Re R (Child Abduction: Acquiescence) (1995) 1 FLR 716, there may be cases ‘where the two factors are so inevitably and inextricably linked that they cannot be separated’. We are of the view that this is such a case.
We would not suggest that children must articulate that they object to being returned to the country of their habitual residence for the purpose of enabling the courts of that country to resolve the merits of any dispute as to where and with whom they should live in order to come within the provisions of reg 16(3)(c). That is not the language of children and the Court should not expect them to formulate and articulate their objection, if they had objected in the relevant sense, in that manner. The Court must have regard to the whole of the evidence and determine, no matter how the children articulate their views, whether the children object in the relevant sense. In our view, this was the approach adopted in cases such as Director-General, Department of Community Services v Crowe (supra), Abraham and Abraham (supra) and Urness v Minto (supra).” (at 83,939) (emphasis added)
Further, the second Full Court (De L (Full Court) No. 2) approved the following statement by Nicholson CJ in De L (Full Court) No. 1:
“… a Court should not expect children to necessarily express their views within adult formulations. While Courts may appreciate notions of forum, comity and jurisdiction, and that an objection to meet the terms of Regulation 16(3)(c) must as a matter of law be with respect to the place of habitual residence rather than the person with rights of custody, this is not the stuff of children’s concepts and nor should it be expected that children will speak in such terms unless rehearsed.” (at 83,016) (emphasis added)
We mention in passing that following the High Court decision in De L (High Court) No. 1, but prior to the second Full Court decision in that matter, a differently constituted Full Court had considered reg 16(3)(c) in Director General, Department of Community Services v Crowe (1996) FLC 92-717. The Court, after having carefully considered the High Court decision in De L (High Court) No. 1 and the authorities there cited, concluded:
“In our view, the reasons advanced by a child who objects to being returned are material and may well assist in determining whether the return to which the child objects is that which would otherwise be ordered under the Regulations.
Having considered not only the evidence of Dr Waters but also that of Ms Redding, the grandmother, the grandfather and the father in the light of the observations of the High Court, we are of the view that the trial Judge erred in finding that C objected to being returned to New Zealand within the meaning of reg 16(3)(c). In our view, he erred in the approach he adopted in his consideration of the application of reg 16(3)(c) in that he did not consider whether the return to which C objected was the return which would otherwise be ordered, namely an immediate return to New Zealand so that the courts of that country could resolve the merits of any dispute as to where and with whom she should live.
…
The relevant objection is an objection to being returned to the country of habitual residence for the purposes of the Regulations, not to live with a particular parent. There may be cases where those two matters are so linked that they cannot be separated but this is not such a case.” (at 83,641) (emphasis added)
When the Full Court reconsidered De Lewinski in De L (Full Court) No. 2 in 1997 (supra) the learned Judges referred to Director-General, Department of Community Services v Crowe (supra) and had this to say:
“…In that case, the Full Court clearly purported to follow the decision of the High Court in De L v Director-General, New South Wales Department of Community Services & Anor (supra), as did the trial Judge in this case. In so doing, that Full Court concluded that the relevant objection was an objection to the return which would be otherwise ordered, that is an immediate return to the country of habitual residence so that the courts of that country could resolve the merits of any dispute as to where and with whom the child should live.
It was submitted, however, that Director-General, Department of Community Services v Crowe (supra), at least in relation to the reg 16(3)(c) defence, was wrongly decided because the Full Court there overlooked the following observation of their Honours in the High Court at FLC page 83,452; FamLR page 398:-
‘As we have indicated, the Convention itself contains a compromise, reflected in the terms of the Regulations, by which certain exceptions are allowed to the general principle that an abducted child be returned forthwith to the State of the child’s habitual residence.’
And further, because it misunderstood the principle enunciated by Balcombe LJ to which their Honours in the High Court referred. It was put that the statement of principle was ‘the return to which the child objects is that which would otherwise be ordered under Article 12, namely an immediate return to the country from which it was wrongfully removed’ and that the words appearing thereafter, namely, ‘so that the courts of that country may resolve the merits of any dispute as to where and with whom it should live’ form no part of the statement of principle but merely constitute a commentary on it.
In further support of the submission, we were referred to passages contained in Urness v Minto (1994) SLT 988 and Abraham and Abraham (unreported decision of Judge Inglis QC delivered on 9 September 1996 in the Family Court of New Zealand).” (at 83,937) (emphasis added)
In the result however, the learned Judges were not satisfied that the decision of the Full Court in Director-General Department of Community Services v Crowe (supra) was wrong, nor was there sufficient doubt as to the correctness of that decision to warrant a re-examination of the relevant issue by that Full Court.
Whilst this issue was not argued before us, we are nonetheless constrained to say that the arguments apparently advanced in De L (Full Court) No. 2 concerning the correctness of the decision in Crowe appear, on the face of them to have merit. It is strongly arguable that the words “… so that the courts of that country may resolve the merits of any dispute as to where and with whom the child should live” form no part of the statement of principle, but merely constitute a commentary on it. Given what the High Court had to say in De L (High Court) No. 1, the wording of reg 16(3)(c) should be accorded its natural and ordinary literal meaning. That is, that the child “… objects to being returned” (in this case to New Zealand) qualified however, with a consideration as to whether the child has “… attained an age and degree of maturity at which it is appropriate to take account” of that child’s views.
Having said that, we are satisfied however, on the facts before his Honour in these proceedings, and given the clear direction by the Full Court in De L (Full Court) No. 2 (at 83,939) (alongside that which Nicholson CJ expressed in De L (Full Court) No. 1 at 83,016) that it is not suggested that children must articulate that they object to being returned to the country of their habitual residence for the purpose of enabling the courts of that country to resolve the merits of any dispute as to where and with whom they should live in order to come within the provisions of reg 16(3)(c), for that “… is not the language of children” (at 83,939) or “… not the stuff of children’s concepts” (at 83,016). For reasons to which we shall refer, the evidence before his Honour well supported the conclusion he drew and the orders he made.
Finally, we see merit in the submissions that were put forward in De L (Full Court) No. 2 (supra) that the language of reg 16(3)(c) raises three distinct issues:
“1.whether the child objects; if so
2.whether the child has attained an age and degree of maturity at which it is appropriate to take into account the child’s view; and
3.in the event that there is an affirmative answer to both the foregoing, whether the discretion arising from the word ‘may’ in the opening phrase of reg 16(3) should be exercised to refuse to order the return of the child.” (at 83,934)
In De L (High Court) No. 1 (supra) the High Court followed Clarke v Carson (1996) 1 NZLR 349 at 351. It was made clear in that case that where grounds, such as those contained in reg 16(3) are made out to the requisite persuasion the consequence is:
“… not that the order will be refused but that the Court is no longer obliged to return the child but has a discretion whether or not to do so.”
At that point of time, the discretion must be exercised in the context of the Regulations under which it is conferred and the Convention which they implement and schedule. That requires:
“… assessment of whether decisions affecting the child should be made in the Court from the country from which the child has been wrongfully removed or the country of the Court in which it is wrongfully retained. That requires consideration of the purpose and policy of the Act in speedy return and consideration of the welfare of the child in having the determination made in one country or the other.” (at 351)
There have been a number of decisions dealing with the nature and extent of this residual discretion. It was considered by the High Court in De L (High Court) No. 1 (supra) at 661 where Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said:
“… However, it is to be noted that, if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child’s return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the (Regulations)’ enable it to be said that a particular consideration is extraneous (Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J.) That subject matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.” (at 661)
Later, their Honours said, that like other discretionary powers given in such terms, “… the Court has to exercise discretion judicially, having regard to the subject matter, scope and purpose of the Regulations” (at 662).
The issue of residual discretion was also discussed by Kirby J who had this to say:
“… In my view, it is undesirable that this Court should limit the wide powers properly enjoyed by the experienced judges of the Family Court in discharging their duties, including by the exercise of the discretion which is reposed in them by reg 16(3) of the Regulations. So long as the judge keeps clearly in mind the limited purpose of the jurisdiction conferred, the ordinary way in which the Regulations and the Convention are expressed to operate and the need for a clear and compelling case to sustain an objection which permits an exception to the ordinary duty to order the return of the child, it can be left to the judges to deal with individual cases as the evidence requires.” (at 688-9)
As earlier stated, the De Lewinski matter found its way back to the Full Court which considered the way in which to exercise the residual discretion. See De L (Full Court) No. 2 (supra) at 83,939. The Court considered the particular facts of the case specifically gave “… due weight to the policy of the Convention”. There have been many decisions at first instance considering the factors to be taken into account by a court in the exercise of the discretion arising under the Regulations, and in which it is made perfectly clear that a significant matter for consideration is the underlying purpose and intent of the Convention.
It was the submission of the Central Authority before his Honour, and with which we agree, that having regard to the subject matter, purpose and scope of the Regulations, the Court must undertake a balancing exercise weighing the factors for and against a return. In so doing, the purpose and intent of the Convention is to be accorded significant weight.
In our view, his Honour correctly considered those matters relevant to the exercise of his discretion having heard the submissions urged upon him by counsel. We have, earlier in this judgment referred to his Honour’s careful consideration in this regard and we can find no error in his approach. His Honour applied himself to his task in the exercise of his discretion having regard to the “subject matter, scope and purpose of the Regulations”. The discretion is necessarily a wide one which should not be limited by fixed criteria, for each case is necessarily dependent upon its own particular facts and circumstances. It was open for his Honour to find objection in the relevant sense by the children and make an order that was an exception to the ordinary requirement to return them to New Zealand.
The identification of those matters relevant to the exercise of his discretion included the background of the children’s residence in both Australia and New Zealand, the removal of the children by the wife, the policy of the Convention and events that have occurred since the children have been brought to Australia. They necessarily encompass matters impacting upon the welfare and interests of the children and take into account:
·     the commercial structures established by the husband in New Zealand
·     matters relating to the children’s education in both New Zealand and Australia
·     the fact that the children had, prior to 1996 lived in Queensland and were familiar with it
·     that the wife had no employment in New Zealand
·     that the wife was more financially secure in Australia
·     that the wife had the benefit of social security in Australia
·     there was no home with which the children were familiar and to which they could be returned in New Zealand
·     the wife and the children lived in a residence in Queensland which the parties owned
·     the husband had not lived in New Zealand since January 1999 and that he worked in the USA, and
·     the husband’s contact with the children, on the evidence, was not likely to be adversely affected by their living in Australia, as opposed to New Zealand.
Finally, we consider that his Honour properly addressed the construction of the expression “objects” and the argument that the children expressed a preference, as opposed to an objection. It is clear that the separate expressions used by the children when interviewed by Ms Venus, and to which we have referred, were considered by his Honour, and, as Mr Westbrook properly submitted, was the language of objection expressed in an age appropriate idiom. His Honour considered in detail all the relevant evidence and, correctly in our view, concluded that, on the understanding in which the term is used, the children did object in the relevant sense to being returned to New Zealand.
In the result, his Honour was well satisfied that both the children were of an age and degree of maturity at which it was appropriate to take into account their views and that the circumstances “strongly” favoured an order that they remain in Australia, being a more familiar environment and one whereby the husband’s contact with them would not be “… any way lessened, minimised or damaged” as compared to that which it would be in New Zealand.
In the circumstances the appeal will be dismissed.

COSTS

On the question of costs, it was submitted by Mr Westbrook that in the event the appeal was dismissed, the husband, who elected to pursue the appeal on the material as it stood, should pay the wife’s costs which he assessed in the sum of $3,300. On the other hand, Mr Galloway submitted that there should be no order as to costs, but that in the event that there was to be such an order, it should provide for a taxation (in default of agreement). We are of the view that the circumstances justify the making of an order for costs in the wife’s favour against the husband and that in default of agreement, such costs should be taxed.

ORDERS

That the appeal be dismissed.
That the husband pay the wife’s costs of and incidental to the appeal, with such costs to be taxed in default of agreement.

I certify that the preceding 89 numbered
paragraphs are a true copy of the
reasons for judgment delivered by
this Honourable Full Court.

Associate