Secretary, Attorney-General’s Department and Tilson

[2017] FamCA 216

FAMILY COURT OF AUSTRALIA

SECRETARY, ATTORNEY-GENERAL’S DEPARTMENT & TILSON [2017] FamCA 216

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION –Where the mother removed the child of the relationship from New Zealand without the consent of the father – Where the father seeks the child’s return to New Zealand – Where the parties have a long standing conflictual relationship – Where the mother makes allegations of family violence – Where the father denies many of the mother’s allegations – Where the father has a lengthy criminal and traffic record – Where the mother has not established the “grave risk exception” – Where the father has not been charged with any offences since the removal of the child in May 2016 and there is no evidence of continuing drug use by him – Where the application of the Secretary of the Attorney-General’s Department should be granted – Child to be returned to New Zealand forthwith.

Care of Children Act 2004 (NZ)
Family Law Act 1975 (Cth) – s 111B

Family Law (Child Abduction Convention) Regulations 1986 (Cth) – regs 16(1)(b), 16(1)(c), 16(3), 16(5), and 29,

DP v Commonwealth Central Authority; JLM v Director-General NSW, Department of Community Services DC&S (2001) 206 CLR 401

APPLICANT: Secretary, Attorney-General’s Department (Commonwealth Central Authority)

RESPONDENT: Ms Tilson

FILE NUMBER: DNC 384 of 2016

DATE DELIVERED: 10 April 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATEs: 15 – 17 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Sekler

SOLICITOR FOR THE APPLICANT: Australian Government Solicitor

COUNSEL FOR THE RESPONDENT: Ms Olsson

SOLICITOR FOR THE RESPONDENT: Northern Territory Legal Aid Commission

Orders

1. The child B born … 2016 be returned to New Zealand forthwith pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

2. For the purposes of giving effect to the said order and in particular to consider the terms of the same and any conditions or undertakings that may be required for that order, the proceedings are adjourned to 10:00am (Adelaide time) on Thursday 13 April 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary Attorney-General’s Department & Tilson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 384 of 2016

Secretary, Attorney-General’s Department
(Commonwealth Central Authority)

Applicant

And

Ms Tilson

Respondent

REASONS FOR JUDGMENT

Introduction

1. The application before the Court is the Application filed on 13 September 2016 by the Secretary of the Attorney-General’s Department acting as the Commonwealth Central Authority, seeking a final order to the effect that Mr C (“the father”) and Ms Tilson (“the respondent mother”) make such arrangements as are necessary to ensure the return of their child, B (“the child”) born in 2016, to New Zealand forthwith, in the company of such a person and upon such conditions as this Court deems necessary, pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (“The Convention”).

2. The respondent mother opposes that order.

3. The father of course is the requesting parent at whose behest the application is made.

The relevant legislation

1. Australia is a signatory to the Convention and it has been incorporated into Australian Law through s 111B of the Family Law Act 1975 (Cth) (“the Act”) and the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).

2. In broad terms, the Regulations require an order for the return of the child to be made where:

   a)the application is brought within 12 months of the child’s removal from a Convention country (reg 16(1)(b));

   b)

   the Court is satisfied that the child’s removal was wrongful

   
   

   (reg 16(1)(c)); and

   c)no “exception to return” is made out pursuant to reg 16(3).

3. There is no issue here that the Convention (through the Regulations) applies, and that the pre-conditions in a) and b) above are made out. The issue as identified in the Answer filed by the respondent mother on 10 January 2017, and subsequently amended on 13 January 2017, is whether what is sometimes referred to as the “grave risk exception” is made out by the respondent mother. In that regard reg 16(3) provides that a Court may refuse to make an order for the return of the child if the person opposing the order establishes that:

   (b)There is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

4. Importantly though, establishing this exception does not mean that the Court must refuse to order the return of the child; there is still a discretion to make that order (reg 16(5)).

5. As will become apparent, determination of whether the grave risk exception is made out will involve an assessment of evidence alleging domestic violence on the part of the father, and of what protections are available to the respondent mother in New Zealand in the event that the child is returned. In that regard, I note that if there is a return order made the respondent mother will accompany the child and retain her primary care.

6. In considering this application, this Court has been acutely aware of the need to hear and determine the application as expeditiously as possible. Unfortunately though there have been some slight delays in finally having the matter heard as a result of the respondent mother seeking time to respond to the application, and then to obtain the necessary evidence from New Zealand in support of her case. That request was not opposed by the father, but orders were made which curtailed the time sought.

Background

1. The father was aged 29 years at the time of the hearing, having been born in 1987 at City D, New Zealand. He has resided in New Zealand for his entire life.

2. The respondent mother was aged 28 years at the time of the hearing, having been born in 1989 in Darwin, Northern Territory, Australia. Her parents separated when she was quite young, with her father moving to New Zealand and her mother remaining in Australia.

3. The respondent mother moved to New Zealand in about 2007 to live with her father, and since at least 2012 the respondent mother had never returned to Australia.

4. The child the subject of the proceedings was born in 2016 at City D, New Zealand.

5. The father and the respondent mother have never been married, and they were in an “on again, off again” de facto relationship from 2012 until they separated on 18 May 2016, with the father moving to live with his father.

6. On or about 20 May 2016 the respondent mother told the father that she was going to move to Australia with the child. She had obtained a passport for the child on 17 May 2016.

7. The father immediately made an appointment to see a solicitor on 24 May 2016.

8. On 24 May 2016 the respondent mother told the father that she was moving to Australia with the child the following day. The father told her that he did not agree with that, and he instructed his solicitor to obtain an urgent border alert in respect of the child. That was obtained that day from Interpol.

9. On 25 May 2016, without notice to, and in the absence of the father, the respondent mother obtained a temporary Protection Order against the father.

10. Despite the Interpol border alert, the child was removed from New Zealand by the respondent mother on 25 May 2016. The respondent mother and the child commenced to live with the maternal grandmother at E Town, Northern Territory, Australia, and that is where they currently reside.

11. On 11 June 2016 the father was served with the respondent mother’s application for a Protection Order. The father denied the allegations made therein by the respondent mother and filed a Notice of Intention to Appear and a responding affidavit.

12. On 16 November 2016 the Temporary Protection Order was made a final order. The father consented to that provided he was able to have contact with the child. Orders were then put in place providing for monthly video calls with the child, and for photographs and updates to be sent to the father on a monthly basis.

13. Prior to the father commencing a relationship with the respondent mother, he was in a relationship with Ms M, and they had a child, F born in 2007.

14. The father continues to spend time with that child, although not as often as he did when he and the respondent mother were together. During that time F would stay with the father for three days each week, including overnight.

15. The father has an extensive criminal and traffic history (see annexure “A” to his affidavit filed on 24 January 2017) and much of that is said to arise out of domestic violence alleged to have been committed by the father primarily against his former partner.

16. There are many instances of the father being convicted and sentenced for breaching a Protection Order, and I will address those matters when I come to consider the evidence before the Court.

17. The father has no outstanding criminal offences now, and he is working three to four days each week. He also does work from home for friends.

18. Apart from in relation to the most recent Protection Order, his last appearance in court was on 13 July 2016, when he was dealt with for offences dating back to June 2015. He was sentenced to four months community work which he has completed.

19. As part of the Protection Order and his probation, the father was completing anger management counselling. Prior to the hearing, this counselling was extended because the father found it useful, being one on one rather than in a group.

The evidence

1. The Secretary of the Attorney-General’s Department relied on the Application filed on 13 September 2016, and the father’s two affidavits, respectively sworn on 9 August 2016 (attached to the Application) and 24 January 2017 (filed in response to the affidavit of the respondent mother filed on 10 January 2017). There are a number of annexures to those affidavits, and to the application, that are also relied upon. Those documents are admissible pursuant to reg 29 of the Regulations.

2. Then there are two affidavits of Ms G, solicitor. The first, sworn on 9 August 2016 (and also attached to the Application) sets out the applicable law in New Zealand in relation to guardianship and the care of children, as well as the law in relation to Protection Orders and Parenting Orders. The second, filed on 24 January 2017, expands on the first by setting out how allegations of domestic violence are treated in New Zealand and what options are available to the victims of domestic violence in New Zealand. It addresses in detail Protection Orders, Parenting Orders, and the role of Child Youth and Family Services. Those affidavits too are admissible under the Regulations, and in any event I note that Ms G was not required for cross-examination.

3. In relation to the respondent mother, she relies on her Answer to the Application and her affidavit, both filed on 10 January 2017. In addition, there are two affidavits of the respondent mother’s solicitor, Ms H, respectively filed on 10 January 2017 and 16 February 2017, both annexing various documents ranging from sentencing remarks in relation to the father, to New Zealand police records, to hospital records, to text messages and letters passing between the father and the respondent mother.

4. Then there is the affidavit of Ms I, social worker, filed on 10 January 2017. She worked with the respondent mother from December 2015 until the respondent mother left New Zealand on 25 May 2016. As with the father and the respondent mother, she also gave oral evidence and was cross-examined. Her evidence, and that of the father, was taken by way of video-link.

5. I also note that the applicant filed a chronology and an outline of submissions, and the respondent mother filed an outline of case document incorporating a chronology.

6. At the specific request of both parties, rather than attempt to conduct the hearing on the papers, I permitted cross-examination of the father, the respondent mother and Ms I. That was necessary given the extent of the disputed allegations and counter-allegations, particularly relating to the issue of domestic violence. The question still remains though as to how helpful that process has been, given the nature of the proceedings and the limitations inherent in the same.

Grave risk exception

1. The proper interpretation of reg 16(3)(b) has been settled by the majority judgment of the High Court in DP v Commonwealth Central Authority; JLM v Director-General NSW, Department of Community ServicesDC&S (2001) 206 CLR 401 where Gaudron, Gummow and Hayne JJ (with Callinan JJ agreeing) said this:

   41In the judgment of the Full Court of the Family Court which gives rise to the first of the matters now under consideration (DP v Commonwealth Central Authority) it was said that there is a “strong line of authority both within and out of Australia, that the reg 16(3)(b) and (d) exceptions are to be narrowly construed”. Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified:  that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.

   42Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required:  what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.

   43Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.

   44These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.

   45That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.

   (Emphasis as in original)

   (Footnotes omitted)

The respondent mother’s case

1. In summary, the respondent mother says that the relevant harm to the child if she is to return to New Zealand will be psychological, as a result of the child being exposed to the father causing harm to the respondent mother. It is also put that the child will be placed in an “intolerable situation”, again as a result of harm being caused to the respondent mother by the father.

2. There is no question of physical harm to the child. The respondent mother conceded in cross-examination that the father “is not a danger to [the child]”, and he would not “intentionally hurt [her]”.

3. Thus, the respondent mother’s case is that given the history of domestic violence committed by the father it is predictable that if the child returns with the respondent mother, the child will suffer psychological harm and/or be placed in an intolerable situation if the father is again violent towards the respondent mother.

4. In support of her case the respondent mother points to incidents of domestic violence between her and the father from early 2014 to just prior to her removing the child from New Zealand in May 2016.

5. She further points to what occurred in the relationship between the father and his former partner in 2011 and 2012.

6. The respondent mother claims that as a result of this history there is a “strong likelihood … that the father would threaten harm to the respondent [mother] and/or the child … should the child be ordered to return to New Zealand, particularly if the child is accompanied by her mother”. I pause to note that this claim is inconsistent with the concession made by the respondent mother in cross-examination referred to above, and as will become apparent this claim is also against the weight of the evidence.

7. The respondent mother says that prior to her removing the child she had obtained the assistance and intervention of the New Zealand Police Family Safety Team, Child Youth and Family Services, and a social worker (Ms I) from the Family Start Programme at J Health and Social Services, yet the safety of the respondent mother and the child were not ensured, demonstrated by the events of 18 May 2016.

8. Further, it is argued that the father has had Protection Orders made against him, there have been “multiple police attendances” upon domestic disputes he has been involved in, and he has been convicted and sentenced for breaches of those Protection Orders, yet the father has not been deterred from reoffending, and thus the safety of the respondent mother and the child cannot be guaranteed; allegedly “the justice system in New Zealand” will be unable to protect the child and the mother.

The applicant’s case

1. The father denies many of the respondent mother’s allegations.

2. There is no doubt that he has a lengthy criminal and traffic record but he puts in issue the circumstances of many of those offences.

3. He also disputes much of what is alleged by the respondent mother as to what occurred during his relationship with his previous partner. She of course did not file an affidavit, and she was not called as a witness, and there is virtually no admissible evidence to counter the father’s denials.

4. Significantly the father points to the fact that there is no evidence of any physical or psychological harm to the child of his earlier relationship, and in any event, he says that what occurred in that relationship is too remote to be relied on as a predictor of possible future behaviour.

5. As for the relationship between the father and the respondent mother, the father says that it was dysfunctional, that drugs and alcohol were involved on the part of both parties, that arguments were common place, and there was mutual violence. It is common ground that it was an “on again, off again” relationship extending over a period of approximately four years.

1. The father says that that relationship has plainly ended, and that is the evidence of the respondent mother as well. There is also now a Final Protection Order in place in New Zealand, being the first such order between the father and the respondent mother, and that order prevents any contact between them save and except for the monthly video calls to allow the father to see and speak to the child.

2. The father says that he does not take drugs, and he has not committed any offences of any nature since the removal of the child in May 2016.

3. In summary, the father says that there is no basis to suggest that the child’s safety, or indeed that of the respondent mother, will be compromised if the child is returned to New Zealand.

Discussion

1. In order to determine whether the respondent mother has satisfied the onus of establishing the “grave risk exception”, it is necessary to take a closer look at the allegations that she makes.

2. First, in relation to the father’s former partner; following their separation a Protection Order was imposed in June 2007 as a result of text messages that the father sent to her. Apparently there was also a further Protection Order made on 7 September 2010 for much the same reason.

3. On 31 October 2011, the father was convicted and sentenced for eight breaches of that Protection Order between 8 February 2011 and 24 July 2011. He was sentenced to nine months imprisonment for those breaches, and served two months of that sentence. The father’s evidence was that those breaches related to further text messages, and he says that with some of those he was responding to text messages from his former partner. There was no physical violence involved, and there is no basis to not accept that evidence. He was also convicted of an offence of common assault, but he says that that arose from a fight he had with another person, and again I accept that evidence.

4. There were a further two breaches of the Protection Order in August 2012, and on 10 December 2012 he was convicted and sentenced to one year’s intensive supervision and four months community detention. Those sentences also covered a third charge of threatening to kill or do grievous bodily harm. The father says that did not relate to his former partner, although the sentencing remarks of the judge suggest otherwise. In these circumstances I accept that the offences were in relation to his former partner.

5. Coincidentally, it was also on 10 December 2012 that the father met the respondent mother in the court cells, and their relationship commenced. However, in relation to his former partner, there was a further breach of the Protection Order on 23 October 2015, along with an offence of speaking threateningly to the sister of his former partner, committed on 2 September 2015, for which the father was sentenced on 1 March 2016 to imprisonment for one year and one month.

6. There were three charges of breaching the Protection Order, two relating to text messages, and one relating to him being late to see their child, but he was only convicted of one of these charges. His term of imprisonment was lengthy, but that was because of his previous convictions. He had been remanded in custody on 28 October 2015, and he was released from prison on 11 May 2016.

7. Despite this history, the father’s evidence is that he and his former partner “now get on reasonably well”, and he continues to see their daughter regularly. Again, there is no basis to not accept this evidence.

8. Secondly, I turn to the relationship between the respondent mother and the father.

9. The respondent mother attempts to paint the father as a regular user of methamphetamine which is known as “P” in New Zealand, and suggests that that caused an increase in his aggression and violence towards her. However, as with many of the allegations made by the respondent mother, there is insufficient evidence for this Court to make a fully informed definitive finding about this allegation, but what I can say is that there is no evidence to support the claim that the father was a regular user, and certainly no evidence to suggest that his drug taking played a part in any violent interaction between the respondent mother and the father. In any event, it was common ground that the mother also used drugs, namely marijuana. The father alleges that in addition they used “P” together occasionally in 2013 and 2014, but the respondent mother denies that.

10. The mother makes allegations of stalking behaviour by the father, and of harassment, but I am not persuaded on the basis of her evidence alone and, in the context of the denials by the father, of the truth of these allegations. This again highlights the difficulties associated with the truncated way in which this trial has had to be conducted in the circumstances, and how if these were proceedings in the Family Court in New Zealand, the Court would be far better placed to determine these, and many other of the allegations and counter allegations, made by the respondent mother and the father.

11. The first incident of alleged violence relied on specifically by the respondent mother was on 19 February 2014. She claims that the father fractured her nose with his elbow, and she attended the City D Hospital ultimately requiring surgery. The father says that the respondent mother was drinking, they argued, and in a scuffle her nose was broken. He took her to the hospital where she told staff that she had fallen over whilst running.

12. I find that the father’s evidence here is the more accurate, and that the respondent mother’s injury was caused accidentally.

13. The next allegation relates to an incident on 27 March 2014. The respondent mother was staying with her sister, and the father and his daughter picked her up and took her back to their rented home. She claims that he began to verbally abuse her in the car, and then outside the house. She says he shut her out of the house and she threw a scooter at the door and went to leave. She says that he came outside, “grabbed the scooter and swung it at her head”, with her forearm taking the full force of the blow. She left and the father came after her and drove her to hospital where a fracture was diagnosed and a head injury. Her arm was placed in a cast. She says that she did not call the police and that she told the hospital staff that she “could take care of herself”.

14. The respondent mother subsequently returned to hospital and had a metal plate inserted in her arm. Because of pain and swelling she went back to hospital on 31 March 2014, when she was diagnosed with “cellulitis” and discharged with antibiotics.

15. For the father’s part he said that they argued over a “cannabis debt owed by the mother”, she was “drunk”, and she threw the scooter and other things at him when he told her to leave. The scooter broke a window and the father picked it up and threw it back at the respondent mother, hitting her arm. He confirmed that he took her to hospital.

16. As to this incident, I find that it typified their conflictual, dysfunctional, “on again, off again” relationship, with both parties having to accept responsibility for what happened.

17. The respondent mother alleges that in June 2014, after an incident of violence by the father, she suffered a miscarriage. She claims that he refused to take her to hospital and she walked to her sister’s home. She says he then came and took her back to where they were living, that he locked her in, and he “started up on [me] again” (whatever that means). She says the police subsequently attended.

18. The father denies that he was violent to the respondent mother on this occasion. He says that she took “twenty Panadol tablets, smoked a whole lot of cannabis and locked herself in the toilet”. He says that she would not unlock the door and she refused to go to hospital when he wanted to take her. He denied locking her in and he says that the police attended looking for drugs.

19. Plainly, again, there is insufficient evidence here for me to make any definitive finding, and, for example the respondent mother failed to provide any specifics of the alleged violence by the father.

20. I also pause here to note that the respondent mother filed over 200 pages of police and medical records, some of it redacted. I assume that this material was filed in order to support her allegations, however, curiously not only was no witness taken to any part of those records in relation to any alleged incident of violence, but neither was the Court, until I raised it myself during the final address of the respondent mother’s counsel, and thus it has been a fruitless exercise on the part of the respondent mother to present those records. It is not for this Court to trawl through them and attempt to use them in a meaningful way, assuming that that was even possible.

21. There was another alleged incident in June 2014 when the respondent mother says that “the father hurt [her] previously injured arm after an argument with [her] which took place at [her] sister’s home”. She says the police attended, and she was taken to hospital, but she was “unable to inform police of what had happened” and denied that “an assault had taken place”. She claims though that the police issued the father with what she describes as a “police safety order” for five days. There was no evidence as to the basis of this order, and in fact it would seem to be inconsistent with the fact that no complaint was laid.

22. In any event, the father said that they were arguing a lot at this time, but he did not recall any such incident.

23. I was taken to a print-out of text messages between the father and the respondent mother, and they appear to confirm that her arm was hurt, but that it was unintentional.

24. Again, it is impossible for me to make any definitive finding about this, the evidence once more being vague and non-specific. What I do accept though is that the father and the respondent mother were in conflict and accidental injuries occurred as a result.

25. A year later, on 22 June 2015, at a time when the father and the respondent mother had separated but were attempting to reconcile, there was an argument between them and the respondent mother ran off down the street. The police attended and the respondent mother collected her belongings and went to her sister’s home. The respondent mother alleged that the father was heard by “witnesses” to shout “I will kill you”, but that is plainly inadmissible and in any event I can attach no weight to it; the father denies the allegation.

26. Yet again, the scant and non-specific evidence relied on by the respondent mother simply does not permit me to make any useful finding here, save and except, that what evidence there is from both parties confirms the dysfunctional nature of their “on again, off again” relationship.

27. On 25 June 2015 the respondent mother alleges that the father broke into her sister’s house whilst she was asleep there. She says that he “coerced [her] into having sex with him”. He then tried to steal her dog as he was leaving and there was a struggle. The sister arrived home and called the police.

28. The father says that the respondent mother invited him over, wanting to reconcile. He denies coercing her to have sex and says that when he left, her dog jumped into his car after his own dog; he denies trying to steal her dog.

29. Once more, I can only repeat what I have said generally to date. I find it difficult to accept the vague evidence of the respondent mother, and indeed in relation to many of the allegations raised, I prefer the evidence of the father which is consistent with the obvious nature of the relationship.

30. Next, there was an incident on 28 June 2015, but the respondent mother is not able to provide any admissible evidence of this because she was not present. What I am told by the father though is that the police were looking to speak to him about what happened on 25 June 2015. They attended at his unit and in his absence found two hunting knives in his truck, and a firearm nearby. He says that he and the respondent mother then went away for nine days together and they stayed with the respondent mother’s sister. Upon their return on 13 July 2015, the father was arrested and remanded in custody on charges of possessing knives and a firearm. He was dealt with for these offences on 13 July 2016, namely after the respondent mother had removed the child from New Zealand. He was convicted, albeit his position was that the firearm was not his, and was sentenced to four months community detention, which he has now served.

31. Plainly these are serious offences, but there is no evidence that the father has either used any hunting knife or any firearm (assuming for the moment that it was his) to threaten the respondent mother, or in any way, in relation to her or the child.

32. Following these offences the father was in custody on remand in relation to the breach of the Protection Order obtained by his former partner and referred to above, and copies of correspondence passing between the father and the respondent mother were presented to the court. They revealed the other side of the coin, and in particular the “on again” aspect of their relationship. The respondent mother clearly held no fears of the father, and was anxious to resume their relationship.

33. An instructive incident occurred, the respondent mother says in approximately August 2015, the father says, and I suspect more accurately, some time before June 2015, which emphasises the active part that the respondent mother has played in altercations with the father. It also unfortunately demonstrates how she is prone to exaggerate and indeed not to be entirely truthful when it does not suit her.

34. In her affidavit filed on 10 January 2017 the respondent mother said this:

    61.In mid 2015 the father tried to run me over with his car as I walked away down the street, away from my sister’s house in [Suburb K]. He was driving his [motor vehicle] and mounted the kerb multiple times. He kept coming back and forth at me. I had grabbed a hammer in case he came after me and I hit his car with it.

    62.One time a wall was behind me so I couldn’t dodge, so I jumped up onto the bonnet so the car wouldn’t crush my legs. With the force, I slipped and rolled on the bonnet and went through the windscreen, smashing it. I had heaps of bruising and some cuts, but I do not recall obtaining medical treatment. Police attended. They wanted me to go to the hospital but I refused. I was pregnant with the child at the time, although it was early on and I didn’t know it at the time.

35. In his responding affidavit filed on 24 January 2017 the father said this (excluding a sentence that was struck out as being inadmissible):

    42.I think that this happened before June 2015. My recollection is that I dropped [Ms Tilson] at her sister’s home at around 9am on (sic) morning and we agreed that I would collect her there again at 2pm. She then contacted me telling me not to collect her because her sister had turned up and she didn’t want her sister to know that she was still seeing me. I turned up anyway because I knew we had an appointment we needed to be at.

    43.[Ms Tilson] came storming out of the house with a steel pole. She smashed the window screen of my car. I drove a short way off to check the damage and then returned. [Ms Tilson] still had the steel pole and used it to smash the passenger window of my car. Her sister was also threatening me with a hammer. …

    44.I did not drive my car at [Ms Tilson] or her sister. [Ms Tilson] didn’t jump on the bonnet – my windscreen was deliberately smashed by her with a steel pole. I didn’t hit her with my car.

36. Counsel for the respondent mother cross-examined the father on the basis of the version deposed to by the respondent mother, but when the respondent mother was cross-examined about this, her evidence was far more consistent with the father’s version, than with her own. For example, she agreed that she grabbed a steel pole and went outside to confront the father. She also agreed that she did “smash” his car, although she maintained her story that the windscreen was broken by her body going through it, something which I find difficult to accept.

37. The next incident is said to have occurred on 13 and 14 September 2015 at a time when the respondent mother was pregnant. The respondent mother claims that she went to the father’s home, that he kept her “captive overnight”, that he assaulted her by kneeing and punching her in the stomach and the head, that she escaped by jumping out of a window and took herself to hospital. Typically the father denied these allegations. He says that on 13 September 2015 the respondent mother “voluntarily” came to stay with him and she remained for three nights. He says he did not assault her, and that he did not harm her in any way.

38. Once again I am not able to make a definitive finding as to who is telling the truth in relation to this incident. No third party witness gave any evidence in relation to it, and no police charges were laid. All I can say is that given their history I would not be surprised if something had happened, but not necessarily to the extent alleged by the respondent mother.

39. As referred to above, the father was in prison from 28 October 2015 until 11 May 2016. During that time the respondent mother and the father remained in contact through correspondence, through telephone calls and visits by the respondent mother. It was also during this time that the child was born.

40. When the father was released from prison it was the respondent mother who collected him, and initially at least, they stayed together at her home. However, it was not long before they were again in conflict, and another incident occurred on 18 May 2016. This led to the mother removing the child from New Zealand despite there being an Interpol Border Alert in place. It is common ground that the father and the respondent mother argued about her role in the firearms charge that he was still facing. The respondent mother says that the father assaulted her and she called the police. The father denies the allegations, but agrees that the police were called. However, there was no evidence of any charges being laid.

41. As referred to above, on 24 May 2016, just before the respondent mother removed the child from New Zealand, for the first time since their relationship commenced in 2012, the respondent mother applied for a Protection Order against the father. That is significant for two reasons. First, although the respondent mother was well aware of the existence of Protection Orders, given the father’s history, at no time during their stormy, dysfunctional, “on again, off again” relationship of four years, did she see the need to obtain such an order. That plainly casts a shadow over her allegations against the father. Further in that regard, when the affidavit in support of that application is compared with her primary affidavit relied on in these proceedings, the former is decidedly vague and uncertain, but also inconsistent in many respects with the latter. For example, in her affidavit of 24 May 2016 she said this in paragraph 7:

    The first evening following his release, [Mr C] went out and got drunk and high on drugs again …

    Yet, in paragraph 74 of her affidavit filed on 10 January 2017 she deposed in relation to the same occasion, that the father was drinking at her home, that friends arrived and he suggested that he would go out with them to continue drinking, but in the end he decided not to go. Plainly these two depositions cannot stand together, and one must be incorrect; given the evidence of the father, I suggest it is the former.

42. Secondly, and in the context of attempting to predict the future, if there is any truth in the allegations made by the respondent mother, finally it seems that she is prepared to stand up and seek the protection that she is entitled to, and which will ensure her safety. That has come with the making of the final Protection Order on 16 November 2016.

43. There are other allegations made by the respondent mother which are plainly opportunistic and which also comprise pure speculation. The respondent mother suggests that the father is either a member of motor cycle gangs or has close connections with them. She has annexed to her affidavit Facebook pages containing references to a motor cycle gang posted by the father in 2014. She also annexed a photograph of the father claiming that it depicts the father wearing a t-shirt signifying his membership/involvement in a motor cycle gang. She says this in paragraph 85 of her affidavit filed on 10 January 2017:

    One of the reasons I did not report incidents of domestic violence to the Police was because whenever I “snitched” I would always get problems from members of the … Motorcycle Gang coming around to my house and hassling me.

1. First, that paragraph is plainly internally inconsistent; on the one hand she says that she did not report incidents to the police, but on the other she says that when she did she was hassled by members of the motorcycle gang. Significantly, during cross-examination, the respondent mother conceded that the latter statement was just not true.

2. Secondly, when deposing in that same affidavit to the specific incidents of domestic violence, there is no mention of this claim.

3. Thirdly, and perhaps consequentially, I do not believe her.

4. It is stretching credulity to suggest that the photograph of the father in the

   
   

   t-shirt demonstrates any association with any motorcycle gang; that claim is nonsensical.

5. As for the motorcycle gang in question, the father says that he has never been a part of that gang. He did have a friend who was a member, and at the time, namely 2014, they were conducting a charity motor bike ride to raise funds for “[City L] Free Ambulance”, and the father was supportive of this activity and posted photographs on his Facebook page. I accept that evidence, and his denial of the claims of the respondent mother that he has threatened her with sending around the motorcycle gang.

6. It is apparent that this issue is raised by the respondent mother in the context of her claim that if she returns to New Zealand with the child, then there can be no guarantee of her safety and thus the child will be put at risk of harm and/or placed in an intolerable situation. For example, she said this in her affidavit filed on 10 January 2017:

   100.I am extremely concerned about my safety and the safety of the child, should this Honourable Court order the return of the child to New Zealand, given the serious and sustained abuse I received at the hands of the father and the father’s proven disregard of Court orders and disdain of the Police.

   101.I am also very fearful that he or his Motorcycle associates will track myself and the child down in New Zealand and will harm or kill myself and/or the child.

   102.I do not have any accommodation that I could reside in (sic) New Zealand that would make me feel safe, which includes my sister’s residence and my own father’s residence.

   103.I was advised by my New Zealand Social Worker [Ms I] and CYFS workers that the child and my safety could only be ensured outside of New Zealand.

   104.I have also been informed by [Ms I] that even if the child and myself lived in a New Zealand Refuge, our security could not in her experience be guaranteed as gangs such as Motorcycle Gangs have been known to send women into refuges to locate other women.

7. I will address the claims in paragraphs 100 and 102 shortly, but for now I reject the claims in paragraphs 101 and 104.

8. The claim in paragraph 101 is easily dealt with given that there is absolutely no evidence to support the same. As for what the respondent mother reports the social worker, Ms I, as saying in paragraph 104, that claim is contained in Ms I’s affidavit. However, I say two things about that. First, her “knowledge” of what motorcycle gangs can do can only have any relevance if it is established that the father has an association with such a gang, and that has not been established here. Secondly, and in any event, although she claims to have “worked mainly with gang members for five years” (whatever that may mean), Ms I has not been qualified as an expert into how motorcycle gangs operate in New Zealand, and I place no weight on her claims in that regard.

9. It is perhaps convenient at this point to address the evidence generally of Ms I.

10. To repeat, she is a social worker who worked with the respondent mother from December 2015 until May 2016. She is currently working with the Family Start Programme at J Health and Social Services, working in a team which focusses on supporting young Maori parents. She previously worked for New Zealand’s Women’s Refuge for approximately two years, and she has worked with victims of domestic violence for approximately 10 years.

11. The respondent mother was referred to the Family Start Programme by the New Zealand Government’s Child Protection Agency, Child Youth and Family Services. Apparently, that Agency was concerned about the prospect of the father and the respondent mother resuming their relationship following the birth of their child once the father was released from prison. That concern was apparently based on the tumultuous history of their relationship.

12. Once the father was released from prison, and following the incident on 18 May 2016, Ms I was involved in meetings with Child Youth and Family Services, the police, the respondent mother and her sister, to put in place a safety plan. It seems the primary focus was finding alternative accommodation for the respondent mother where the father could not find her. At the time she was staying at her sister’s home, and the father was aware of that.

13. Ms I says that the respondent mother was offered the option of going into a Women’s Refuge or simply moving out of the area, but the respondent mother declined that offer. The respondent mother indicated that she and her sister could stay with their father because he had just moved, and the father did not know where he lived. I pause to note that this is inconsistent with paragraph 102 of the affidavit of the respondent mother. In any event, according to Ms I it was then that the respondent mother said that she was “actually going to Australia”. Pausing there again, that evidence is to be contrasted with the evidence of the respondent mother that she did not want to leave New Zealand but she had no choice; she was told by the police and by Ms I that she should leave.

14. There is no question that Ms I and the police supported the mother’s decision to move to Australia, but I reject the emotive and completely unjustified statements by Ms I in paragraph 26 of her affidavit where she said this:

    In my opinion [Ms Tilson] taking her baby to Australia was the safest option and the most likely one to keep her and baby alive. [Ms Tilson] and I had talked about different options for her but there were no guarantees any others could 100% keep her safe, even if she went into a Women’s Refuge. In my opinion, [Ms Tilson] would be at a grave risk of harm or homicide if she was to return to New Zealand anytime soon.

15. As referred to above, there is no suggestion here that the child would be physically harmed, let alone killed, if a return order is made. Further, the issue is grave risk to the child, not the respondent mother.

16. I find Ms I to be a partisan witness whose opinions I can give little or no weight to.

Conclusion

1. I am not persuaded on the evidence before this Court that the respondent mother has discharged the onus of establishing that the return of the child to New Zealand would expose her to a grave risk of psychological harm, or place her in an intolerable situation. There is a distinct absence of “clear and compelling evidence”.

2. I have reached that conclusion for the following reasons:

   a)Although the respondent mother has presented evidence of physical violence by the father against her, it has not been possible to make definitive findings in relation to that evidence, given the contrary evidence of the father, and the lack of evidence from relevant witnesses, including family members, current and former friends, police officers and hospital staff.

   There is no doubt that the “on again, off again” relationship between the parties can be described as dysfunctional, tumultuous and abusive at times, and as I have already found, it is apparent on the evidence that both parties played significant roles in the violence and abuse that occurred.

   It is also the case that the evidence of the respondent mother was generally vague and uncertain, and there were a number of inconsistencies in that evidence. Further, not only did she exaggerate and embellish parts of her evidence, but sadly, as she conceded in cross-examination, there was no truth in her claim that whenever she “snitched” to the police, members of a motorcycle gang would come around to her home and hassle her.

   b)Although in a number of areas I prefer the evidence of the father to the respondent mother, that is not to say that I accept the truth of all of the father’s evidence. That highlights again the difficulty in this case given the nature of the proceedings, and the limitations inherent in the same. To determine where the truth lies in relation to the allegations made by the respondent mother against the father, comprehensive and detailed evidence is required from all relevant witnesses as referred to above, but that has not been possible in this case.

   One prime example of this arises from the respondent mother’s attempts to rely on allegations arising out of the father’s relationship with his previous partner. However, she has neither given evidence nor filed an affidavit, and I speculate that that is because of the logistics involved.

   Another example is the circumstance that although the Court was provided with a record of the father’s criminal and traffic history, apart from the sentencing remarks of the judges who heard two of those matters, there is no authoritative evidence as to the circumstances of the conviction therein recorded. Plainly that creates a dilemma for the respondent mother when all the Court has is the evidence of the father. I pause to note again that the hearing of the application was in fact delayed to allow time for the respondent mother’s legal representatives to attempt to obtain information from the various authorities in New Zealand, but that did not prove entirely successful in the end result.

   c)As the majority of the High Court said in DP v Commonwealth Central Authority; JLM v Director General NSW, Department of Community Services DC&S, what is required is “some prediction, based on the evidence, of what may happen if the child is returned” ([41]) (my emphasis). Here, the respondent mother says that the evidence of domestic violence perpetrated by the father both in relation to his former partner and her, and the fact that the father disregards court orders, as well as his disdain for the police, allows this Court to predict that if a return order is made then there is every likelihood that the father will again perpetrate domestic violence on the respondent mother, exposing the child to psychological harm and placing her in an intolerable situation. However, as I have attempted to demonstrate, the evidence is simply not there to enable this Court to make that prediction.

   d)I need not repeat what I have said about the issue of domestic violence. However, in relation to whether it can be said that the father will (or may) breach court orders, the evidence also does not satisfy me of that. Certainly there is evidence of the father breaching Protection Orders made in favour of his former partner, but in my view, apart from there being no evidence from his former partner, that is too remote to base a prediction on of what might happen in the future. For a start, prior to the respondent mother removing the child, there was no Protection Order in place, and thus obviously the father has not breached such an order in relation to the respondent mother. There is now a Protection Order in place though and there is no evidence of any attempt by the father to breach that.

   This in turn highlights the flaw in the suggestion by Ms I, seemingly now adopted by the mother, that the mother and the child’s safety could only be ensured outside New Zealand. Putting aside for the moment that there is no evidence that the child’s safety is at risk, and concentrating on the mother, the facts are that it was only on the day before she left New Zealand that a Protection Order was put in place, and no attempt was made to invoke the jurisdiction of the New Zealand Family Court to obtain Parenting Orders that would ensure the safety of the respondent mother and, if necessary, the child. In my view, the combination of a Protection Order in place and parenting proceedings before the New Zealand Family Court should have been the option taken rather than abducting the child and then this Court having to consider a return order. There can be no doubt that proceedings in the New Zealand Family Court would not have suffered from the same limitations affecting this Court, and it is the obvious forum to address the needs of the child and put in place appropriate orders. The principle behind the Convention is a sensible one. Decisions about a child’s welfare are usually best made in the place with which they have the strongest connection. All of the relevant and necessary witnesses are in New Zealand and the Family Court there is best placed to address in a fulsome way the allegations and counter allegations that are being made in this case.

   The affidavits of Ms G set out in some detail the process in the Family Court of New Zealand when Parenting Orders are sought, and the resources that are available to the parties and the child in the context of such proceedings, as well as the orders that can be made. However, I need not repeat any of that here. Helpfully, Ms G has also provided detailed information as to Protection Orders, the terms of the same, and how they are enforced. She said this at paragraph 19 of her affidavit filed on 24 January 2017:

   If the child and/or Ms [Tilson] were to return to New Zealand and Mr [C] were to contact them in any way outside of the agreed monthly calls, it would be open to Ms [Tilson] to contact the police and report a breach of the Final Protection Order. The New Zealand police have a dedicated Family Safety Team and take reported breaches of Protection Orders seriously. It is likely that Mr [C] would be charged with the criminal offence of breaching the Protection Order. That would be particularly serious for him given his background … It is very likely that he would be remanded in custody without bail.

   e)It might be suggested that given the history of the relationship as the respondent mother has portrayed it, that she may not look to enforce a breach of the Protection Order. However, that would be inconsistent with the evidence now before the Court. First, the respondent mother was prepared to take out an Interim Protection Order on 24 May 2016. Secondly, in cross-examination she agreed that she is now willing to speak to the police, presumably on the basis that previously she was not. Thirdly, she said she is fully aware of the support services that are available to her, and certainly from December 2015 she availed herself of them.

   The concern of Child Youth and Family Services, and of Ms I, prior to the father’s release from prison, was that the child may suffer if they resumed their dysfunctional relationship, but the respondent mother’s evidence is quite clear that that will not now happen. She agreed in cross-examination that, “the father has burnt his bridges with me”, and “he has had his last chance”.

   Pausing there, that is in effect the father’s evidence as well, and I accept that the relationship has ended.

   To add to that, in his affidavit filed on 24 January 2017 the father said this:

   70.If [the child] was ordered to return to New Zealand, I would obviously want to see her and spend time with her. I have already missed out on so much. I understand that I would need to make an Application to the Family Court for that to happen and that is what I would do. I understand that the Family Court would need to be satisfied that [the child] would be safe and that any contact I had with her in person is likely to be supervised for a start.

   71.I am very conscious that a Final Protection Order has been made, I am not interested in going back to prison for breaching the Protection Order and wouldn’t try to see [the child] or [Ms Tilson] outside of the Family Court process.

   I accept that evidence.

3. In terms of practical issues such as accommodation and the support that would be available to the respondent mother if a return order was made, and as expected she was to accompany the child back to New Zealand, there is ample evidence to indicate that there is no support there for the claim that if a return order is made the child would be exposed to a grave risk of psychological harm, or be placed in an intolerable situation. There are clearly structures, services, resources and regimes in place in New Zealand, including a legal system similar to our own, that can provide a safe environment for the respondent mother and the child.

Accommodation and family

1. The respondent mother has resided in New Zealand for the majority of her life, and she has immediate family there, namely, her father and her sister. No credible reason has been given as to why the respondent mother could not reside with her sister if it came to that. Similarly, there is no credible reason put as to why, alternatively, the respondent mother could not live with her own father if necessary. Indeed, she suggested that to Child Youth and Family Services before she left New Zealand.

2. In any event, as the respondent mother said in cross-examination, it would be open to her to rent premises, and I note that the father has also offered to move out of the rented premises where the respondent mother and the child resided prior to and at the time of his release from prison, and he would live with his own father.

3. Further, if the respondent mother is concerned as to her own safety, then there are safe houses run by Women’s Refuges throughout New Zealand which are available. Indeed, as referred to above, that option was offered to the respondent mother but she declined suggesting that the father would still find out where she was. However, I do not accept that that is the reality.

Financial support

1. The respondent mother previously received benefits from the New Zealand Government Ministry of Social Development, but they were suspended once she left New Zealand. I understand that those benefits can be sought again upon her return to New Zealand.

2. The respondent mother is also entitled to receive child support benefits in respect of the child from the Inland Revenue of the New Zealand Government.

3. I add that the father has offered to meet the costs of the airfare for the child to return to New Zealand, if necessary.

Legal, Health and other practical services and support

1. In summary, the respondent mother would have access to medical services, including hospital services, upon her return to New Zealand.

2. The New Zealand police can issue and enforce Family Safety Orders in the event of further domestic violence occurring (see paragraph 11 of the affidavit of Ms G filed on 24 January 2017).

3. A notification can be made to Child Youth and Family Services if there was any concern about the safety of the child, and support and other services could then be put in place, such as was done in December 2015. Here I refer to paragraphs 25 to 28 of the said affidavit of Ms G, and generally to the affidavit of Ms I filed on 10 January 2017.

4. The respondent mother of course has the benefit of the Protection Order put in place finally on 16 November 2016. As to this also see paragraphs 4 to 19 of Ms G’s said affidavit.

5. There is the ability of the respondent mother to seek Parenting Orders under the Care of Children Act 2004 (NZ), and as to that I refer to paragraphs 20 to 24 of the said affidavit of Ms G.

6. Finally, I note the following:

   a)There is no evidence of any physical or psychological harm to the child. Further, and just as significantly from the point of view of predicting harm, there is no evidence of any physical or psychological harm to the father’s other daughter who is 10 years old and who previously spent three days each week with him.

   b)There is no evidence of continuing drug use by the father.

   c)The father has not been charged with any offences and appears to have kept out of trouble since the removal of the child in May 2016.

1. The application of the Secretary of the Attorney-General’s Department will be granted, but the parties will be required to assist the Court in relation to the mechanics of the order for return, and any undertakings or conditions that may be required. Thus, I also propose to adjourn the proceedings to address those matters.

I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 10 April 2017.

Associate: 

Date:  10 April 2017