Secretary, Department of Communities and Justice & Anson
[2022] FedCFamC1F 183
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Secretary, Department of Communities and Justice & Anson [2022] FedCFamC1F 183
File number(s): SYC 7957 of 2021 Judgment of: WILLIAMS J Date of judgment: 24 March 2022 Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Child retained in Australia from New Zealand – Held, there was an agreement to return the child to New Zealand – Where the date of wrongful retention was disputed – Consideration of the principle of repudiatory retention – Where the child was habitually resident in New Zealand as at the date of retention – Where all the jurisdictional facts have been satisfied – Regulatory exception – Acquiescence reg 16(3)(a)(ii) – Where the father asserts the mother acquiesced to the child remaining in Australia – Held, the father has not discharged his onus – Child to return to New Zealand – No conditions to return. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 15, 16
Cases cited: De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640
DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401
Handbury & State Central Authority and Anor [2020] FamCAFC 5
HZ & State Central Authority [2006] FamCA 466
In re C and another (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294
Re H (Minors) [1998] AC 72
Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC 165
State Central Authority & Handbury [2019] FamCA 668
Zotkiewicz & Commissioner of Police (No. 2) [2011] FamCAFC 147
Division: Division 1 First Instance Number of paragraphs: 90 Date of hearing: 7 March 2022 Place: Melbourne Counsel for the Applicant: Mr Tockar Solicitor for the Applicant: DCJ Legal, Department of Communities and Justice Solicitor for the Respondent: Adam Jones Solicitor ORDERS
SYC 7957 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Applicant
AND: MR ANSON
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
24 MARCH 2022
THE COURT ORDERS THAT:
1.The child, X, born 2012 (“the child”), be returned to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1986.
2.The father be at liberty to accompany the child to New Zealand.
3.The Australian Central Authority notify the New Zealand Central Authority of the father and child’s date of departure.
4.Paragraph 5 of the Orders made 1 November 2021 is hereby discharged and the respondent or his nominee authorised in writing is permitted to collect the child’s and the father’s passport immediately upon receipt of a sealed copy of this order.
5.Pending the child’s departure from Australia for return to New Zealand, the respondent continue to be restrained and an injunction issue restraining him from causing or permitting or suffering the child:
(a)to be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;
(b)to apply for any further or other passport or passports for the child;
(c)to be removed from New South Wales;
(d)to reside anywhere other than his present residential address or any other residence at which the applicant has agreed that the said child may reside.
6.Paragraph 5 of these orders remain in force, until a letter from the applicant is received by the Australian Federal Police advising of the travel arrangements made for the child’s return to the New Zealand AND IT IS REQUESTED that the Australian Federal Police remove the name of the child, X, born 2012 from the Airport Watch List upon presentation for boarding the nominated flight to New Zealand on the date nominated for the said travel.
7.A sealed copy of these orders be provided forthwith to the Marshal of the Federal Circuit and Family Court of Australia, the Commissioner of the Federal Police and the police forces and services of the states and territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
8.The Marshal of the Federal Circuit and Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the states and territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.
9.Liberty is reserved to the parties to apply urgently in relation to the implementation of these orders.
10.Otherwise, the Application of the Secretary, Department of Communities and Justice be and is hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Department of Communities and Justice & Anson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
This is an application by Secretary, Department of Communities and Justice (“the State Central Authority”) filed on 29 October 2021 seeking the return to New Zealand of the child X born in 2012 (“the child”), pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent, Mr Anson is the father of the child. The requesting parent, Ms B is the mother of the child who lives in New Zealand.
The relevant regulations are made pursuant to s 111B of the Family Law Act1975 (Cth), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention.
The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal/retention of a child from his/her country of habitual residence. Both Australia and New Zealand are signatories to the Convention.
Upon establishment of the pre-requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A), there are limited circumstances or exceptions to return which may be relevant in response to an application to return the child to his country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
If the court is satisfied on the requisite standard of proof that one or more of the regulatory exceptions to return are made out, then the court has a discretion to return the child. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child: HZ & State Central Authority [2006] FamCA 466.
The Regulations provide as follows:
Reg 16 Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
(1A)For sub-regulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2) If:
(a) an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under sub-regulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) each of the following applies:
(i) the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of sub-regulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in sub-regulation (3) is established by a person opposing return.
The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed/retained from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
In De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640, the High Court cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
In this case, the solicitor advocate for the father cross-examined the mother. The respondent was not cross-examined.
The State Central Authority asserts that the child has been wrongfully retained in Australia from 2 November 2020, or early 2021 in accordance with regs 16(1) and (1A), on the following basis:
(a)the child is under the age of 16;
(b)the child was habitually resident in New Zealand as at the date of retention;
(c)the requesting parent, the mother, has rights of custody in relation to the child, which she was exercising immediately prior to the child’s retention; and
(d)the retention of the child was in breach of the mother’s rights of custody.
The father filed a Form 2A on 16 December 2021, which does not specifically address jurisdictional issues. The relief sought is as follows:
(a)that the Hague Convention Return Application sealed on 29 October 2021 be dismissed;
(b)that the child’s primary residence remain in the jurisdiction of Australia, with the respondent father.
The father did, however, dispute the date of retention and consequently asserted the application was not commenced within 12 months of the wrongful retention, which may be construed as no objection to the jurisdictional facts being met.
For the sake of completeness, I will briefly consider the jurisdictional facts as set out in reg 16(1A).
Obviously there was no dispute that the child is under 16 years of age. The father did not actively assert that the child was not habitually resident in New Zealand at the date of retention, although he did dispute the date of retention. I address and make findings about the child’s habitual residence at the date of retention, in my consideration of the date of retention and whether the retention is wrongful. I have concluded that the date of retention was 2 November 2020 and that the child was habitually resident in New Zealand as at that date.
As to whether the mother had rights of custody in relation to the child which she was exercising immediately prior to the child’s retention, there was no dispute that the orders made in the appropriate court in New Zealand in May 2015 provide for the child to live with the mother and the rights conferred on the mother by virtue of those orders, constitute rights of custody for the purposes of reg 4(1). Similarly, there was no issue about whether the retention of the child was in breach of the mother’s rights of custody, as it clearly was. Accordingly, I am satisfied that the jurisdictional facts have been met.
Once the jurisdictional facts are met, regs 16(1)(b) and 16(2)(b) draw a distinction between applications filed within one year after a child’s removal or retention, and applications filed more than one year after the day on which a child was first removed to or retained in Australia. In cases where an application is filed more than one year after the wrongful retention, a person opposing a return of a child is afforded an opportunity to persuade the court that the child has settled in his or her new environment.
If a court is persuaded that a child is settled in his or her new environment, there is no discretion to order the summary return of a child: see Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC 165, at [18]. On the contrary, if the court finds that a child is not settled, return of the child is mandatory, subject to regulatory exceptions set out in reg 16(3). If one or more of the regulatory exceptions is sustained, the court retains a discretion to refuse the return of the child. As to the factors informing the exercise of that discretion: see HZ & State Central Authority [2006] FamCA 466.
The respondent disputed the date of retention, as asserted by the State Central Authority. In his Outline of Case filed 4 March 2022 under the heading, ‘Summary of Argument’, he sets out the basis of the his opposition to a return order as follows:
(a)pursuant to Regulation 16(2), the Application was brought greater than one year after the child was retained in Australia and the Applicant has not sufficiently established that the child has not settled in Australia;
(b)pursuant to Regulation 16(3), order (sic) should not be made as the respondent has established that:
(i)there is a grave risk that the return of the child under the Convention would expose the child to psychological harm;
(ii)the child has shown a strong objection to being removed from Australia. The child is nine years old, and some consideration should be given to his views.
The Outline of Case also makes reference to the mother having acquiesced to the unlawful retention of the child (reg 16(3)(a)(ii)).
Most appropriately, during final submissions, the father’s solicitor advocate conceded that the father no longer pressed the regulatory exceptions of grave risk of harm and the child’s objection to return. I will therefore not address those regulatory exceptions to return.
Issues in dispute
The following issues required determination:
(1)the date of retention of the child in Australia;
(2)was the child habitually resident in New Zealand as at the date of retention;
(3)have the jurisdictional facts been satisfied;
(4)if it is found the application was filed more than one year after the date on which the child was retained, is the child settled in Australia;
(5)did the mother acquiesce to the child’s retention in Australia; and if so, should the court exercise its discretion to refuse to return the child to New Zealand.
Onus of proof
The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.
The State Central Authority bears the onus of proving the jurisdictional facts which establish that the retention was wrongful: DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401. As previously remarked, the jurisdictional facts were not contested in this matter.
If the application was filed more than one year after the day on which the child was retained in Australia, the respondent bears the onus of proof to establish the child is settled in Australia. The respondent also bears the onus of proof for regulatory exceptions, in this case acquiescence.
Preliminary Matters
The hearing was conducted electronically via Microsoft Teams, which enabled the requesting parent, the mother to participate in the proceedings.
I wish to express my appreciation to both counsel for the applicant and the solicitor advocate for the father for the professional and courteous manner in which the proceedings were conducted.
Evidence and Documents relied upon by the parties
The State Central Authority relied upon the following documents:
(a)Form 2 Application filed on 29 October 2021;
(b)Affidavit affirmed by the mother on 24 June 2021 and filed under cover of the Form 2 Application (pp. 33–42);
(c)Supplementary Affidavit affirmed by the mother on 20 July 2021 and filed under cover of the Form 2 Application (pp. 43–52);
(d)Further Affidavit affirmed by the mother on 14 October 2021 and filed under cover of the Form 2 Application (pp. 53–55);
(e)Mother’s Affidavit in Reply sworn on 14 February 2022 and filed under cover of an affidavit sworn and filed by Ms C on 14 February 2022;
(f)Affidavit of Mr D sworn on 6 July 2021 and filed under cover of the Form 2 Application (pp. 22–24);
(g)Supplementary Affidavit of Mr D sworn on 21 October 2021 and filed under cover of the Form 2 Application (pp. 25–32);
(h)Affidavit of Ms C affirmed and filed on 24 February 2022.
The respondent relied upon the following documents:
(a)Form 2A Answer and Cross-Application filed 20 December 2021;
(b)Affidavit of the respondent father sworn on 16 December 2021 and filed under cover of the Form 2A Answer and Cross-Application.
Credit of Witnesses
The mother was cross-examined by the father’s solicitor advocate. She impressed me as a direct and forthright witness. She answered questions promptly, made appropriate concessions and did not seek to provide embellished answers which she thought would advance the applicant’s case. I accept her as a witness of truth.
No other witnesses were required for cross examination.
Background
The requesting mother is a citizen of New Zealand who lives in New Zealand. The respondent is the child’s biological father and is a citizen of Australia, who lives in Australia.
The child was born in New Zealand in 2012 and both parents are named on his birth certificate. He is a citizen of New Zealand.
The parents commenced a de facto relationship in New Zealand around mid-2008 which continued until 2009. In 2011, the parents recommenced their relationship, however by the time the mother was around 16 weeks pregnant with the child, the father relocated to Australia. The father returned to New Zealand for the birth of the child, prior to returning to Australia approximately one month later.
On 16 May 2015, parenting orders were made in the relevant New Zealand court for the mother to have day-to-day care of the child and for the father to have contact with the child. The child has spent various periods of time with the father both in Australia and New Zealand.
In December 2019, the mother agreed for the child to travel to the United Kingdom with his father to visit the paternal family. She delivered the child to City H on 29 February 2020 on the basis that he would be returned to her care no later than 5 April 2020.
The father and child’s trip to the United Kingdom was interrupted by the Covid-19 pandemic and they returned to Australia prior to the anticipated date and underwent 14 days quarantine. Subsequently, in May 2020, the parents discussed the terms of the child remaining in Australia and his eventual return to New Zealand. I refer in greater detail to the discussions between the parents later in these reasons.
On 18 October 2020, the mother sent an email to the father seeking a commitment that the child would be returned to her after Christmas that year. On 2 November 2020, the father emailed the mother, stating that in his opinion it was not safe for the child, nor in his best interests, to return to New Zealand and proposed that the parties attend a Dispute Resolution Service.
On 29 October 2021, an Application was filed by the State Central Authority seeking the return of the child to New Zealand.
The date of the wrongful retention of the child in Australia
The date of wrongful retention is a fact to be determined by the Court. It is the relevant date to determine the jurisdictional facts (reg 16(1A)) and the date from which the period in reg 16(2)(b) is calculated.
The State Central Authority asserts that the date of wrongful retention of the child was either 2 November 2020, the date on which the father sent a message to the mother indicating that he did not intend to send the child back to New Zealand in January 2021, as had been previously agreed between the parties, or at the latest January 2021.
The relevant message dated 2 November 2020 is Annexure F to the mother’s supplementary affidavit of 20 July 2021 and reads as follows:
I’m not convinced that [X] returning to NZ is either safe or in his best interests. I know that you feel differently. We need to discuss this properly and possibly at length. I too have taken legal advice and as such I have arranged for the Family Telephone Dispute Resolution service to contact you to arrange mediation session for us.
Counsel for the State Central Authority submitted the message constituted a clear repudiation of the agreement between the parties that the child would be returned to New Zealand by no later than January 2021. In particular, it is evident from the message that the father had formed a subjective intention not to return the child to New Zealand at the expiration of the period which was agreed between the parents as the date upon which he would be returned.
According to the father, in his Outline of Case, “there is no clear date from which X was wrongfully retained in Australia”. Contrary to that statement, in his final submissions, the solicitor advocate for the father submitted the date of wrongful retention of the child in Australia was 5 April 2020, the original date on which the child was due to be returned to the mother in New Zealand. That is so because there was no subsequent agreement between the parties to return the child to New Zealand at the end of 2020, which could have been repudiated by the father in his message of 2 November 2020. The mother’s perception of the agreement may have been that the child would be returned to New Zealand after Christmas 2020, but the actual agreement, from the father’s perspective, was for the child to remain in Australia and then to adopt a wait-and-see approach as to whether the child would remain in Australia or be returned to New Zealand.
As to the substance of the agreement between the parties, the solicitor advocate for the father cross-examined the mother about the emails and messages annexed to her supplementary affidavit of 20 July 2021 (Annexures A to F), between May 2020 and November 2020.
The first email in Annexure A is undated and is an email sent by the father to the mother subsequent to a telephone call on 19 May 2020 between the parents and Skype sessions on 20, 21 and 26 May 2020, between the parents and on some occasions, including the child. The email clearly refers to an agreement between the parties for the child to remain in Australia until the end of the year and for him to attend school, with the father concluding:
I am not going to put him on a flight home and risk his health or life just because you want to give him a hug and kiss.
At the end of the year when he has finished school I will look into whether it is safe to travel again as we agreed when you were being rational. Until then I am waiting on legal advice on what to do. I’ll send you a list of information I’ve been sent about travel restrictions.
The second email in Annexure A is an undated email from the mother to the father, responding to a text message sent to her by the father, which she was unable to retrieve because it was on a previous phone which was broken.
Annexure B is an email from the father to the mother sent on 31 May 2020 as follows:
[Ms B]
Thank you for agreeing to [X] staying here until the end of the year.
He starts at [E School] tomorrow (Monday 1/6/20). I'll keep you updated with his progress.
We'll keep with the normal weekly Skype at 1oam NZ time Sunday mornings so his weekly schedule isn't interrupted unless he asks different.
We will also keep adding to [X]'s Storypark profile so that you have regular photos and videos of what he's up to.
[Mr Anson]
Annexure C is an email from the mother to the father sent on 18 October 2020 at 7.55 pm as follows:
[Mr Anson]
I'm writing to you as I wanted to still make sure that you are sending [X] home after Xmas, is this still the plan? I'm asking because for a while now I've been conversing with a lawyer about this situation with [X]. I would like something drawn up legally with regards to [X] coming back after Xmas and am giving you the respect in writing to let you know this and to get confirmation from you that this is still going to happen.
If this is still the ca se then my lawyer will draw up a legal letter for you to sign.
[Ms B]
Annexure D is an email from the father to the mother sent on 21 October 2020 at 10.33 pm as follows:
[Ms B]
Things are really busy here at the moment.
Thanks for your email, I'll get back to you.
[Mr Anson]
Annexure E is an email from the mother to the father sent on 21 October 2020 at 10.54 pm as follows:
Thanks [Mr Anson]
It would be good sooner rather than later as I’m within my full legal rights as [X]’s full custodial parent according to our parenting order to bring him home before then.
I’m just giving you the respect as his dad to leave him until after Xmas to come back as we discussed.
[Ms B]
Annexure F is an email from the father to the mother sent on 2 November 2020 as follows:
[Ms B]
I'm not convinced that [X] returning to NZ is either safe or in his best interests.
I know that you feel differently. We need to discuss this properly and possibly at length.
I too have taken legal advice and as such I have arranged for the Family Telephone Dispute Resolution service to contact you to arrange a mediation session for us.
[Mr Anson]
The mother’s evidence during cross-examination was that she had originally wanted the child returned to New Zealand by 5 April 2020 as she had agreed for him to have a five-week holiday with his father. She was also aware that there were flights between Australia and New Zealand in April 2020 but because of Covid-19, she had a discussion with the father and determined it was best for the child to remain in Australia until the end of the year. She did not know what to do, was traumatised and sought legal advice. She subsequently Skyped with the child in May 2020 when the child told her he wanted to stay with his father in Australia. After Skyping with the child, she had a phone call with the father when the prospect of the child remaining in Australia was discussed. She was steadfast that the agreement for the child to remain in Australia was until the end of the year, after Christmas 2020 and was never that he would remain indefinitely in Australia. As to the Skype conversation with the child referred to in Annexure A, the mother’s evidence was that the child was telling her he wanted to return to New Zealand but had been “coerced” by the father with sporting activities and other things to stay in Australia. She did not know what to do and felt that it should not have been the prerogative of the seven and a half year old to decide where he lived.
She did not accept the father’s position that he would look into the arrangements for the child at the end of the year, was to defer a decision about return until the end of the year. She was steadfast that she had always agreed that the child would be returned to her after Christmas 2020.
The father’s solicitor advocate suggested to the mother that her statement in her email, in Annexure A “therefore we will wait til the end of the year and see how it goes” was consistent with the father’s position, that the child’s living arrangements would be reviewed at the end of the year. Her evidence was the statement referred to a review of the Covid-19 situation and not whether the child would be returned, notwithstanding her email did not otherwise mention Covid-19.
The mother was also steadfast that the father’s email to her of 31 May 2020, Annexure B, was further confirmation of the agreement to return the child to her at the end of the year. She did not accept that the statement in the father’s email of 12 October 2020, Annexure D, “I’ll get back to you “was consistent with the father’s position.
She agreed that there were no telephone calls between the parents subsequent to May 2020 and that all relevant correspondence was before the Court.
I do not accept the submissions on behalf of the father that there was no agreement to return the child to New Zealand at the conclusion of 2020. The emails were obviously drafted by the father with significant care to support his position. That interpretation is opportunistic and does not accord with the mother’s evidence during cross-examination, that all times she expected the return of the child to New Zealand after Christmas 2020, which I accept as truthful.
I find that the agreement negotiated between the parents in or around April and May 2020 was that the child would remain in Australia until after Christmas 2020 and would then return to New Zealand. It is obvious from the email chain between them that both parents had legitimate and significant concerns about the child travelling internationally during the Covid-19 pandemic during 2020 and that the agreement reached took into account the risks of international air travel at that time.
The re-characterisation of the agreement by the father is an attempt to construe against the mother her fair and reasonable concessions for the child to remain in Australia during an unprecedented Covid-19 pandemic, including significant restrictions on international travel between Australia and New Zealand, imposed by both countries at various times during that stage of the pandemic.
Having determined the agreement between the parents was to return the child to his mother after Christmas 2020, I will now turn to the submissions as to repudiatory retention.
Repudiatory retention occurs when a retaining parent forms a subjective intention not to return the child to the state of habitual residence at the expiration of the period which was agreed between the parties as the date upon which the child would be returned: In re C and another (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1.
Whether the mother’s rights of custody were breached in the context of a repudiatory retention, was considered by the Full Court of this Court in Handbury & State Central Authority and Anor [2020] FamCAFC 5 (“Handbury”).
At [49] of Handbury, the Full Court said:
…and we agree, in order to establish a breach of custody rights, there must be a subjective intention not to comply with the prior agreement, which is manifested by objective evidence.
It is self-evident from the email of 2 November 2020 that the father had formed a subjective intention not to return the child to New Zealand at the expiration of the time which was agreed between the parents as the date of return to New Zealand. The mother could not and indeed was not, under any misapprehension that the father was conveying to her that he would not abide by the agreement to return the child at the agreed time.
The father’s subjective intention was manifested by objective evidence, namely the message to the mother of 2 November 2020. I find that the father repudiated the agreement for the child to be returned to New Zealand at the agreed time.
In accordance with the statements in Handbury at [50], once the father unilaterally decided not to abide by the terms of the prior agreement for a limited stay, he repudiated the agreement for the child to be returned to New Zealand at the agreed time, the presence/retention of the child in Australia was no longer on the terms which the parents had originally agreed. The father’s repudiation of the agreement and retention of the child in Australia, was a breach of the mother’s rights of custody, being her right to determine the place of residence of the child, as specifically stated in reg 4(2) and her right conferred by the New Zealand orders, for the child to reside with her.
I agree with the submissions of counsel for the State Central Authority about repudiatory retention of the child and find that the child was wrongfully retained in Australia on 2 November 2020.
Was the child habitually resident in Australia at the date of retention
As referred to by counsel for the State Central Authority, in order to satisfy the jurisdictional facts, I must find that the child was habitually resident in New Zealand as at the date of retention. As the child’s habitual residence as at 2 November 2020 was not directly conceded by the father, I will address the child’s habitual residence as at the date of retention. I also note that the father did not raise the issue of the child’s habitual residence as at 2 November 2020, either in his Outline of Case or final submissions, although much of his affidavit is devoted to whether or not the child is settled in Australia.
The question of whether a person is habitually resident in a particular country is a question of fact, not an artificial legal construct, and requires an evaluation of all relevant circumstances.
The law in relation to habitual residence in Australia is well settled. The seminal authority is the High Court decision of LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”). French CJ, Gummow, Hayne, Heydon and Kiefel JJ said:
23.… First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
…
25.… it may be accepted that "[h]abitual residence, consistent with the purpose of its use, identifies the centre of a person's personal and family life as disclosed by the facts of the individual's activities". Accordingly, it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.
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27.When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
28.… examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
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34.… when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
35.It follows … that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
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45.Moreover, the approach described in [Punter] accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.
In his Outline of Case, counsel for the State Central Authority, set out very helpful submissions about the child’s habitual residence as at 2 November 2020. Those submissions include:
(a)the child was born in New Zealand;
(b)as at 2 November 2020, the child had only been living in Australia for less than eight months, having returned to Australia from his holiday to the United Kingdom in March 2020;
(c)prior to 29 February 2020, except for a period of approximately four months between December 2017 and April 2018 (when he stayed with his father in Australia), the child had only spent short holiday time in Australia and otherwise lived his entire life with his mother in New Zealand;
(d)in New Zealand, the child lived with his mother and half-sister, Y;
(e)the mother deposes to the child having a close bond with her and his half-sister;
(f)the mother, who is habitually resident in New Zealand, has always been the child’s primary carer;
(g)the child’s involvement in the New Zealand health care system and social work programs is evident from the material attached to the affidavit of Ms C filed 24 February 2022;
(h)according to the records of the F Hospital dated 19 February 2020 (Annexure A to the affidavit of Ms C) “multiple supports were put in place with [X’s] health and education”;
(i)the orders made by the Family Court at City G in New Zealand on 16 May 2015 provide for the mother to have day-to-day care of the child on a full-time basis and for the child to spend time with the father on a gradually increasing basis, culminating in provision for the child from the age of eight years to spend up to 10 consecutive days at a time with the father in Australia twice per year. These are the orders in full force and effect;
(j)before his arrival in Australia at the end of February 2020 the child’s integration into life in New Zealand was deep and substantial;
(k)there was no adult pre-planning of the move to Australia on 29 February 2020, as it was intended to be a holiday for just over one month with a return scheduled to take place on or before 5 April 2020;
(l)from the child’s perspective he is nine years old and has suffered from developmental delay and has been diagnosed with ADHD;
(m)the habitual residence of a young child cannot be unilaterally changed by one parent and the evidence supports the fact that the mother has never agreed to a change of X’s place of habitual residence;
(n)there is and was no “settled purpose of intention” as envisaged in cases such as Zotkiewicz & Commissioner of Police (No. 2) [2011] FamCAFC 147 at [72];
(o)the child at the age of nine years, and taking into account his developmental difficulties, cannot be regarded as having the power to determine for himself his country of habitual residence;
(p)the evidence establishes that the mother at all times expected the child to remain in Australia only on a temporary basis and he would ultimately be returned to New Zealand. The father cannot override the mother’s rights and expectations.
The father’s affidavit, under the headings, ‘Why it is in X’s best interests that the current arrangement continues’ and ‘Current situation’ refers to the child living with his father in Australia since March 2020 and his improvements in education, developmental, behavioural and social skills. It also refers to cessation of medication and introduction of a diet plan, including consumption of vitamins and fish oil. The father deposes to the child being home schooled during Covid-19 prior to being enrolled in a local primary school and attending a school counsellor and speech pathologist. Details are provided of the child’s progress with self-sufficiency, his bond with his half siblings and activities including swimming lessons, baking and meal preparation, attending movies, joining cubs and the father’s view that it is best for the child’s fundamental and social development to be in his primary care. That evidence clearly demonstrates the child’s day-to-day life, but of itself is insufficient for me to determine that the child is habitually resident in Australia. There were no submissions directed to the other factors relevant to determination of a child’s habitual residence, including intention of both parents when determining habitual residence of a young child.
I accept the submissions of counsel for the State Central Authority about the child’s habitual residence. I find that as at 2 November 2020, the child was habitually resident in New Zealand.
Have the jurisdictional facts been satisfied
Consequential upon my finding that the child was habitually resident in New Zealand prior to his retention in Australia, which occurred on 2 November 2020, and that his retention was in breach of the mother’s rights of custody, I am satisfied that all the requirements of reg 16(1A) have been satisfied. I find his retention, which occurred on 2 November 2020, was wrongful.
Was the application filed within one year of the retention of the child
As I have determined the retention of the child which occurred on 2 November 2020 was wrongful, the application filed by the State Central Authority on 29 October 2021 was filed within the one year of the child’s retention in Australia. It is not necessary to consider whether the child is settled in Australia.
REGULATORY EXCEPTIONS TO RETURN
Acquiescence – reg 16(3)(a)(ii)
Did the mother acquiesce to the child’s retention in Australia?
In his Outline of Case the father submits:
It therefore cannot be said that the mother consented to [X]’s extended stay in Australia at this time but that she had acquiesced to the unlawful retention of [X].
Doing the best I can with the issue of acquiescence, the father seems to be asserting that the mother acquiesced to the child remaining in Australia subsequent to the return date initially agreed by the parties, 5 April 2020 and that gives rise to a regulatory exception to return (reg 16(3)(a)(ii)).
The negotiations between the parents, subsequent to the return of the child from England to Australia, occurred in the midst of Covid-19 pandemic, when international travel was restricted and at times even prohibited. The father refers to that fact in his own affidavit, at [57], where he deposes:
Between 9 and 21 March 2020, [Ms K] and I took the children to [the United Kingdom] for a holiday. [Ms B] had consented to us taking [X] overseas. Due to the Covid-19 outbreak, our stay was cut short, and we immediately returned to Australia. We self-isolated for 14 days, during which time it was decided that the borders were to be closed and there was no way for [X] to safely return to New Zealand.
He further deposes at [58]–[59]:
58.On 20 May 2020, [X] asked if I could talk to the mother about him staying with me in Australia permanently and travelling back to New Zealand to spend time with her during the school holidays…
59.I had a conversation with the mother and explained the situation to her. The mother told me with words to the effect of that: it was her decision to make and that she wanted him to return to New Zealand. At the time I felt strongly that it was too risky for [X] to travel back to New Zealand, so he continued to reside with me in Australia.
Furthermore, Annexure H1 to the father’s affidavit is an assessment report from the E School, which states:
[X] came to Australia for the 2019/2020 Christmas holidays, but was unable to return home due to Covid-19 travel restrictions.
As submitted by counsel for the State Central Authority, and I agree, the information was obviously provided to the school by the father.
The tests regarding consent and acquiescence are essentially the same, although acquiescence occurs subsequent to retention.
In Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294, Holman J stated:
On the facts of a particular case, a court may consider that evidence of consent needs to be cogent before it can overcome the degree of improbability of consent having been given on those particular facts. But in the end there is only one question, namely has consent been established? And only one standard, namely the balance of probabilities.
In State Central Authority & Handbury [2019] FamCA 668 (“State Central Authority & Handbury”), at [240] Bennett J said:
The evidence of consent or acquiescence may be by words or inferred by conduct however, the consent (and it is submitted the same applies to acquiescence) must be real and unequivocal and can only be made out by clear and cogent evidence…
Whether or not a wronged parent has acquiesced in the removal or retention of a child, depends upon their actual state of mind, which is a question of fact to be determined in all the circumstances of the case and where the burden of proof falls on the “abducting parent”: State Central Authority & Handbury, Bennett J at [242], adopting Lord Browne-Wilkinson in Re H (Minors) [1998] AC 72 at [90].
In this case, in the context of the travel prohibitions and restrictions arising from the Covid-19 pandemic, the statements in Annexure H1, my findings as to the nature of the agreement between the parties, the father’s own evidence that the pandemic prevented travel to New Zealand, and the mother’s evidence about her intention that the child would be returned to her at the end of 2020 or early 2021, it is simply not possible to find any clear and cogent evidence of acquiescence by the mother, nor that her state of mind was that she had agreed not to seek the immediate return of the child, and I so find. The father has not discharged his onus to the requisite standard.
To construe a situation where international travel between Australia and New Zealand was not possible, as the mother allegedly acquiescing to the child remaining in Australia, is extraordinary. The reality of the situation, as articulated by the father in his affidavit, was the child was stuck in Australia and the mother had no other option available to her. Thereafter she negotiated with the father in good faith, for the child to be returned to New Zealand at the end of the year, when it might have been safe and possible for the child to return.
Conclusion
As I have found that the mother did not acquiesce, I do not need to consider the circumstances in which my discretion to return is enlivened.
There were no submissions by either party about conditions for return of the child. I will therefore make orders for the return of the child to New Zealand.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 24 March 2022
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