Secretary, Department of Communities and Justice & Garakas

[2023] FedCFamC1F 696

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Secretary, Department of Communities and Justice & Garakas [2023] FedCFamC1F 696

File number(s):

SYC 3130 of 2023

Judgment of:

WILLIAMS J

Date of judgment:

21 August 2023

Catchwords:

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Return application to New Zealand – Where there is an allegation of wrongful removal – Consideration of child’s habitual residence – Where all other jurisdictional facts are conceded – Found child habitually resident in Australia and removal not wrongful – Application dismissed

Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 111B

Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 15, 16

Convention on the Civil Aspects of International Child Abduction

Cases cited:

Bamfield & Secretary, Department of Communities and Justice [2022] FedCFamC1A 35

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.

HZ & State Central Authority [2006] FamCA 466

LK v Director-General, Department of Community Services (2009) 237 CLR 582

Punter v Secretary for Justice [2007] 1 NZLR 40

Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147

Division:

Division 1 First Instance

Number of paragraphs:

99

Date of hearing:

20-21 July 2023

Place:

Melbourne

Counsel for the Applicant:

Mr Harris

Solicitor for the Applicant:

Secretary, Department of Communities and Justice

Counsel for the Respondent:

Dr Barnett SC with Ms Seric

Solicitor for the Respondent:

Uther Webster & Evans

Table of Corrections
22 August 2023	In the Appearances on the cover page in the field Counsel for the Respondent, the words “with Ms Seric” after “Dr Barnett SC” have been added.

ORDERS

SYC 3130 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE

Applicant

AND:

MS GARAKAS

Respondent

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	21 AUGUST 2023

THE COURT ORDERS THAT:

1.The Form 2 Application filed by the State Central Authority on 5 May 2023 is 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 & Garakas has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUSTICE WILLIAMS

INTRODUCTION

1. This is an application by the Secretary, Department of Communities and Justice (“the State Central Authority”) filed on 5 May 2023 seeking the return to New Zealand of the child, X, born 2021, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).

2. The respondent is the mother of the child. The requesting parent, who lives in New Zealand, is the child’s father.

3. 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 (“the Convention”), which is generally referred to as the Hague Convention.

4. 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.

5. Upon establishment of the pre-requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A) of the Regulations, 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.

6. 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.

7. 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.

   Note 1:In considering whether the matter mentioned in paragraph (3)(b) is established:

   (a)the court may have regard to any risk that the return of the child under the Convention would result in the child being subject to, or exposed to, family violence; and

   (b)the court may have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention; and

   (c)the court may have regard to the matters mentioned in paragraphs (a) and (b) of this note regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur.

   Note 2:For the definition of family violence, see section 4AB of the Act.

   (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.

   (6)If:

   (a)the court is considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b); and

   (b)a party to the proceedings, or an independent children’s lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c):

   (i)in a return order for the child; or

   (ii)in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order;

   the court must consider whether it would be appropriate to include the condition.

   (7)In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b).

   (8)Subregulations (6) and (7) do not limit the matters to which the court may have regard in considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b).

8. The Regulations require that applications for the 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)).

9. 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.

10. In this case, counsel for the State Central Authority cross-examined the mother and Senior Counsel for the mother cross-examined the father.

11. The State Central Authority asserts that the child has been wrongfully removed from New Zealand, in accordance with regs 16(1) and 16(1A), on the following basis:

    (a)the application was made within one year of the child;

    (b)the child is under the age of 16;

    (c)the child was habitually resident in New Zealand immediately prior to removal;  

    (d)the requesting parent, the father, has rights of custody in relation to the child which he was exercising immediately prior to the child’s removal; and

    (e)the removal of the child was in breach of the father’s rights of custody.

12. The mother opposes the application for return and asserts that the child was habitually resident in Australia immediately prior to removal from New Zealand in early 2023. She conceded all other jurisdictional facts and did not rely on a regulatory exception to return.  

    Onus of proof

13. The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.

14. The State Central Authority bears the onus of proving the jurisdictional facts which establish that the removal was wrongful: DP v Commonwealth Central Authority; JLM v Director–General, NSW Department of Community Services (2001) 206 CLR 401.

    Preliminary Matters

15. The hearing was conducted electronically via Microsoft teams. This enabled the father to participate in the proceedings.

16. I wish to express my appreciation to counsel and Senior Counsel for the professional and courteous manner in which the proceedings were conducted.

    Evidence and Documents relied upon by the parties

17. The State Central Authority relied upon the following documents:

    (a)Form 2 Application filed 5 May 2023;

    (b)Affidavit of Ms B filed 5 May 2023;

    (c)Affidavit of Mr C filed 10 July 2023;

    (d)Outline of Case document filed 13 July 2023.

    (e)Documents tendered by counsel.

18. The mother relied upon the following documents:

    (a)Form 2A Answer filed 22 June 2023;

    (b)Affidavit of Ms Garakas filed 22 June 2023;

    (c)Affidavit of Ms E (maternal grandmother) filed 22 June 2023;

    (d)Outline of Case document filed 18 July 2023;

    (e)Documents tendered by Senior Counsel.

    Credit of Witnesses

19. The father was cross-examined by Senior Counsel for the mother. As appropriately conceded by counsel for the State Central Authority, the father’s evidence was problematic. He did not directly answer questions and often sought to give a speech about matters he wanted to emphasise, rather than answer the question asked. He was an inaccurate historian and unable to make any concessions. He clearly felt aggrieved by the removal of the child from New Zealand and his evidence was influenced by his myopic view of events and lack of objectivity.

20. The mother was cross-examined by counsel for the State Central Authority. She gave evidence in a responsive and direct manner. She did not attempt to avoid any questions or obfuscate her evidence. She was forthright, concise and made appropriate concessions. I accept her as a truthful witness and generally prefer her evidence to the father, where their evidence conflicts.

    Background

21. The father was born in Country D and is aged 56 years. He is a citizen of the United Kingdom with permanent residency in New Zealand after relocating there in 2017. The mother was born in Australia and is aged 38 years. She is an Australian citizen. There is one child of the relationship, X, who holds Australian citizenship and is the subject of this proceeding.

22. The parents met in Country F in late 2019 during a holiday when they were both attending the G Centre and commenced a relationship shortly thereafter. At that time, the father ordinarily resided in New Zealand and the mother resided in Australia.

23. After meeting in Country F, the parties travelled back and forth between their respective countries to spend time with each other and foster a relationship. The father contends the mother moved permanently to New Zealand in early 2021 after a series of extended visits. The mother denies she moved to New Zealand to live, and says she continued living in Australia whilst visiting New Zealand.

24. In 2021, the mother fell pregnant while visiting the father in New Zealand. She asserts that the father did not want her to proceed with the pregnancy and asked her on multiple occasions to consider a termination. Whilst this was initially agreed to by the mother and she travelled to New Zealand in 2021 with the intention of undergoing a termination procedure, she decided not to proceed and continued with the pregnancy.  

25. The mother experienced significant illness during her early pregnancy, thus decided to travel back to Australia in 2021 to be in the company of her family. The father asserts that it was the mother’s intention to travel back to New Zealand to give birth to X, however, due to Covid-19 restrictions this was no longer possible. The mother denies this.

26. X was born in 2021 in Sydney, Australia and following his birth remained in the primary care of the mother in Australia until his first visit to New Zealand in the second half of 2022. In early 2022, the father arrived in Australia to live with the mother and their newborn child. The family then travelled together to the United Kingdom in early 2022 and returned to Australia in mid-2022.

27. The father deposes that in the second half of 2022, the family moved to New Zealand where they lived together in a house owned by him until X’s removal from New Zealand. Conversely, the mother asserts she has always lived in Australia, including throughout the course of the relationship with the father. The mother contends that rather than living in New Zealand with the father, she visited New Zealand on three occasions, totalling approximately five months between the second half of 2022 and early 2023. During these visits the mother maintained her employment in New South Wales, although she took leave for a period of months.

28. In early 2023, the father left home to run some errands and buy coffee. Upon his return home, the mother and X were not there and he was unable to contact the mother via telephone. The next day the father discovered that the mother had returned to Australia with X. The mothers asserts that she returned to Australia in early 2023 to resume work and raise X as her leave was due to end a short time later.

29. On 8 February 2023 the mother filed parenting proceedings which were stayed on 23 May 2023 in the Sydney registry, Division 2, of this Court. On 5 May 2023 the Form 2 Application was filed by the State Central Authority.

    JURISDICTIONAL FACTS

30. I will address the only jurisdictional fact in issue, where the child was habitually resident immediately prior to the date of his removal from New Zealand.

    Habitual Residence (reg 16(1A)(b))

    Relevant legal principles

31. 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.

32. 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.

    …

    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.

    …

    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.

    …

1. In LK, the High Court at [45] referred to the requirement to consider the question of habitual residence by reference to whether the place has a “degree of settled purpose from the child’s perspective”. The High Court  also cited with approval the decision of  the Court of Appeal of New Zealand in Punter v Secretary  for Justice [2007] 1 NZLR 40 (“Punter”) as follows:

   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.

2. At [44] of LK the High Court said:

   It is, however, not necessary to examine the decision in SK in detail. Rather, it is sufficient to observe that in Punter v Secretary for Justice, the effect of the decision in SK was described in the plurality reasons of the Court of Appeal of New Zealand (Anderson P, Glazebrook, William Young and O'Regan JJ) as holding that the inquiry into habitual residence is "a broad factual inquiry".  The plurality went on to say in Punter:

   "Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration.  In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at para [22], the underlying reality of the connection between the child and the particular state".

   As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality's references to settled purpose are to be read as directing attention to the intentions of the parents.  But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled. So understood, there is no disconformity between the approach of the New Zealand courts and the need, identified by Lord Brandon in re J, to decide the question of habitual residence "by reference to all the circumstances of any particular case".

3. There is no hierarchy of relevant considerations and each relevant factor referred to in LK will be given weight according to the individual circumstances of the child and the parents: Bamfield & Secretary, Department of Communities and Justice [2022] FedCFamC1A 35 at [55].

4. In order to find someone is habitually resident in a place they must generally have lived there for an appreciable period: Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147 (“Zotkiewicz”).

5. In Zotkiewicz at [82]–[83], the Full Court of the Family Court stated the task of a judge was twofold:

   82.In our view, the observations made by Beaumont and McEleavy sit very comfortably with what the High Court has said most recently in LK.  Accordingly, we consider the task of the Judge was twofold. The first was to ascertain whether the parents had a shared intention that the child would live in Poland with a sufficient degree of continuity that their purpose could properly be described as settled. The second was to determine whether the period of time spent in Poland was sufficiently appreciable for it to be said that the underlying reality of the connection between the child and Poland was such as to justify a finding he was habitually resident in that country.

   83.In approaching this task, the Judge was obliged to construe the Regulations having regard to the principles and objects of the Convention, recognising “that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence”.

6. In this case, the State Central Authority asserts the child was habitually resident in New Zealand immediately prior to his removal, because after the child’s arrival in New Zealand in the second half of 2022, there was a shared intention between the parents to live in New Zealand pending the father obtaining New Zealand citizenship and acquiring rights to live in Australia. It is further asserted that the time X spent in New Zealand between the second half of 2022 and his removal in early 2023, was an appreciable period, being almost seven months and his connection with New Zealand should be regarded as meaningful.

7. The mother contended that she had always been habitually resident in Australia and the purpose of her visits to New Zealand with the child in the second half of 2022 was to explore her relationship with the father, foster the child’s relationship with him and to support the father with his mental health difficulties. Her intention was to return to Australia with the child upon the conclusion of her maternity leave and she vehemently denies living in New Zealand at any point. She also contended that the time X spent in Australia was an appreciable period and his connection to Australia was meaningful and he had a degree of settled purpose.

8. At the commencement of the trial, counsel for the State Central Authority made an oral application to adjourn trial on the basis that the father had only received the exhibits to the mother’s trial affidavit the day prior. As a result, the father sought to adduce further evidence from family and friends about alleged conversations between the mother and the proposed witnesses, and their knowledge about the shared intention of the mother and father to remain in New Zealand until the father was eligible for New Zealand citizenship.

9. This application was opposed by Senior Counsel for the mother because the mother was ready, willing and able to proceed with the trial on that day and the State Central Authority had ample time to file affidavits from those witnesses, which did not occur. If the trial were adjourned, the mother would incur the costs of Senior Counsel with no prospect of recovery from the State Central Authority, which would be prejudicial to her and the application was made at the instigation of a witness and not a party to the proceedings.

10. I accepted the submission of Senior Counsel for the mother regarding the prejudice to her client, and bearing in mind my obligation to expeditiously determine the application, I did not allow the trial to be adjourned. I proposed to counsel for the State Central Authority that the Father be permitted to adduce oral evidence in chief about his recent conversations with the proposed witnesses, and that evidence would no doubt be put to the mother in cross-examination. That proposal was acceptable to all parties.

11. The father gave evidence about a conversation he had with his sister, Ms H. Whilst he was in the United Kingdom three or four weeks prior to the trial he spoke to his sister about her recent interactions with the mother. According to him, Ms H had multiple phone calls with the mother following her departure from New Zealand. The conversations were allegedly recorded by Ms H, although the father did not have access to the recordings at that time. Apparently the mother tearfully confessed to Ms H that she had made a terrible mistake in leaving and that she always thought she would remain in New Zealand but her own mother threatened to disown her if she did not return to Australia.

12. The second conversation was with two friends, Dr J and Mr L. They told the father about alleged conversations with the mother, wherein she expressed her intention to remain in New Zealand and that she had enquired about properties and suitable schools in New Zealand. The father alleges that these conversations between the mother and the two friends took place around September/October 2022.

13. The third conversation occurred between the mother and two “[sports]” friends, Ms N and Mr O. The father said he had a conversation with Mr O about a week prior to the commencement of trial, when Mr O conveyed to him that Ms N understood once the family had the option to move to Australia they would, but would remain in New Zealand pending the fathers’ citizenship.

14. I now turn to consider whether the parents had a shared parental intention, with the sufficient degree of continuity that their purpose could properly be described as settled.

15. In support of his contention of shared parental intention for the family to live in New Zealand, the father relied on the following assertions:

    (f)the mother permanently relocated to New Zealand in early 2021;

    (g)it was the shared intention of the parents to reside in New Zealand as a family unit until the father obtained New Zealand citizenship;

    (h)pursuant to the shared parental intention, the family lived at the father’s home in City GG, New Zealand;

    (i)the parents discussed schooling options for X including waitlists for private schools and had discussions with friends about which were better schools;

    (j)the mother investigated businesses to purchase in the local area, was keen to buy a larger property, spoke to the father’s niece about X chasing chickens in the garden and looked for work opportunities in New Zealand;

16. The mother’s evidence about parental intention is in stark contrast to the father’s.

17. The mother denies that she decided to relocate permanently to New Zealand in early 2021, or at all. She also refutes the father’s contention at paragraph 8 of his affidavit filed 5 May 2023, that prior to early 2021, the mother had visited “New Zealand for a few extended visits” as prior to that time she had only visited New Zealand for a period of six days in early 2020.

18. In early/mid-2021 the mother was employed in Sydney on a full-time basis as an officer in a government department. In or around early 2021, the mother submitted a request to her employer to work from home for a three week period from early to mid-2021 so she could travel to New Zealand to visit the father, in anticipation of international flights between the two countries reopening in early 2021. Exhibit MG-4 of the mother’s tender bundle is a copy of email correspondence between the mother and her employer.

19. The mother’s request was denied by her employer, so she took annual leave from her job between early 2021 and mid-2021. A copy of her annual leave statement is Exhibit MG- 23 of the mother’s tender bundle.

20. The mother produced the entry and exit records from Australia to New Zealand for her travel in early 2021 which demonstrate the limited period of her intended travel and that she intended to return to Australia. Those records are Exhibit MG-21 of the mother’s tender bundle.

21. The mother travelled to New Zealand in early 2021 and returned to Sydney in mid-2021. She was absent from Australia for 18 days. She deposes that she learnt she was pregnant and informed the father shortly thereafter. According to the mother, upon her return to Australia there were telephone conversations between herself and the father about the possibility of terminating her pregnancy. The mother wanted the father to accompany her, if she agreed to a termination, and his response was that he would if she travelled to New Zealand to undergo the procedure. The mother agreed to do so because as an Australian citizen, she was eligible to have the procedure performed in New Zealand.

22. In 2021 the mother travelled to New Zealand where she remained for a number of days. Her evidence was that the purpose of her travel was to undergo a termination, which she later decided against, and to support the father as his mental health appeared to be deteriorating. She denied this trip to New Zealand was indicative of an intention to commence living there.

23. In 2021 the mother and father attended a clinic at Suburb K Hospital in New Zealand and scheduled a termination.

24. The mother deposes that in 2021 the father’s mental health deteriorated, and he was hospitalised. The mother relies on a series of text messages between herself and the father’s treating psychologist, Ms P, which are Exhibit MG-7 of her tender bundle. The father denies the mother’s version of events and claims the text messages from the psychologist should be considered in the context that the mother was also a patient of Ms P’s and she relied entirely upon the mother as her source of information as to the father’s mental health difficulties at that time.

25. In any event, in 2021 the mother decided against a termination and formed an intention to give birth to the child in Australia. She advised the father of her decision. I find the mother’s evidence about the dual reasons she travelled to New Zealand in 2021 to be entirely credible and consistent with her initial intention to have a termination, but that she later changed her mind and returned to Australia.

26. I find that the mother did not have the intention as at 2021 to permanently assume living in New Zealand because, as will become apparent, she maintained her connections with Australia and remained in Australia until her visit to New Zealand in the second half of 2022.

27. I do not accept the father’s evidence that the mother permanently relocated to New Zealand in early to mid-2021 and that she was effectively stuck in Australia between June 2021 and the second half of 2022 because of Covid-19 international travel restrictions. That is because I generally prefer the evidence of the mother to the father where it conflicts and I consider the fathers evidence about this issue, for reasons which will become apparent, to be more aspirational than factual.

28. In 2021 the mother returned to Australia and her apartment in Sydney. In support of her contention that she intended to remain living in Sydney, the mother relies upon the following exhibits in her tender bundle:

    (a)a residential tenancy agreement signed by the mother for her Sydney apartment for the period July 2021 to August 2022 (Exhibit AM-10);

    (b)her application for annual leave from December 2021 until January 2022 and further leave in 2022 (Exhibit MG-11);

    (c)a summary of her attendance at Q Family Centre in mid-2022 (Exhibit MG-14);

    (d)a certificate from her GP in Sydney dated early 2023 certifying that X had received all of his vaccinations at that clinic (Exhibit MG-20).

29. The mother also relied upon the following New Zealand passenger arrival cards for herself and X (Exhibit MG-22 of the mothers tender bundle):

    (a)2021;

    (b)The second half of 2022;

    (c)Late 2022;

    (d)Late 2022.

30. All of the arrival cards state that the mother was visiting friends/relatives in New Zealand and her intended stay was of two months or less duration.

31. I accept the documents referred to in the two preceding paragraphs are contemporaneous documentary records which reflect the mother’s intention at that time. I also accept that whilst in some instances the mother had not booked a return flight, the passenger arrival cards clearly articulate the period of time the mother intended to stay New Zealand with the child and her intention to visit friends/relatives and not live in the country. These documents are entirely consistent with the mother’s intention to remain living in Australia and to visit New Zealand on a regular basis to spend time with the father and to foster X’s relationship with his father.

32. The mother relied on further documents included in her tender bundle which were:

    (a)her annual leave records (Exhibit MG-23);

    (b)emails demonstrating her attempts to sublease her apartment while she was in New Zealand, rather than relinquishing the lease (Exhibit MG-25);

    (c)adding X to the wait list of R Childcare in Sydney as from the second half of 2022 (Exhibit MG-27);

    (d)X’s vaccination records in Sydney (Exhibit MG-28);

    (e)her job application to her employer in late 2022 seeking a promotion (Exhibit MG- 29);

    (f)retention of private health insurance which she had maintained since July 2007 (Exhibit MG-32); and

    (g)emails to her employer in early 2023 seeking to return to work following maternity leave (Exhibit MG-37).

33. The mother was cross-examined about her email to the father of April 2022. She refuted any suggestion that there had been an ongoing conversation about her and X moving to New Zealand to live with the father, although she conceded it was an available option.

34. She was also cross-examined about the first trip with X to New Zealand in the second half of 2022. It was suggested to her by counsel for the State Central Authority that she had not bought a return ticket because she had planned to remain in New Zealand with the father until his Australian citizenship was viable. Her evidence was that her travel plans were flexible and that there was no plan to remain in New Zealand with the father, as suggested by him. She agreed that in mid-2022 her mother had assisted her to store her remaining belongings in Australia, but her intention at that time had been to sublease her apartment, which she had unsuccessfully tried to do. Because she was unable to afford to pay the rent on her apartment, she had to relinquish it although she had not planned on initially letting it go.

35. The substance of the father’s oral evidence about discussions between the mother, the father’s sister and friends was also put to the mother. She agreed there had been a discussion between the father, herself and Ms N and Mr O, when Ms N said she wanted to return to Australia. She vehemently denied that during any such discussion she had said her plan was to stay New Zealand pending the father’s citizenship. She agreed she had messaged the father’s sister and had spoken to her about her concerns about the father. I accept the mother’s evidence in this regard.

36. I accept that even if the evidence of the father was true, unembellished and taken at its highest, the mother’s actions and contemporaneous documents clearly demonstrate that she did not make any plans to live permanently in New Zealand pending the father’s citizenship, even if she had made those representations to the couple’s friends.

37. As to the father’s contention that the mother investigated local businesses for purchase in his neighbourhood, was keen to buy a larger property, spoke to the father’s niece about X chasing chickens in the garden and looked for work opportunities in New Zealand, the mother’s evidence was that she had sent the father links to homes and businesses in the Suburb K area and agreed they had viewed three houses list for sale in the area in late 2022 “just out of interest”. Further, she agreed to sending text message/email communications to the father during the second half of 2022. Her explanation for the communications was that she held serious concerns for the father’s mental health after he said to her “I have nothing to live for. I can’t get a job. I have no purpose in life anymore”.

38. I accept the mother’s evidence about these events as it is obvious from her affidavit and Exhibits that the mother held serious concerns about the father’s mental health during the second half of 2022, which continued through early 2023, prior to her departure from New Zealand.

1. The mother was cross-examined about a text message she sent the father in early 2023 after she and X had left Australia. In particular, her comments “I had hoped we would have a wonderful month together and plan how to get through the next year before we came back here, but I could see that you aren’t going to let that happen”. Counsel for the State Central authority put to the mother those comments really meant there had been a joint intention and plan to live in New Zealand through the next year prior to the family relocating to Australia.

2. The mother denied that suggestion and said that what she meant was that she was sorry the planned holiday had not transpired and that the long-term plan was how to get through the next year with the mother and X living in Australia and the father remaining in New Zealand. Senior Counsel submitted the mother’s explanation was consistent with other documentation relied upon by the mother and the court should accept the mother’s explanation of the text message.

3. The wording in the text message is ambiguous and could be consistent with both a joint intention to remain in New Zealand, as submitted by the father, and the mother’s desire to return to Australia with the father remaining in New Zealand, as submitted by the mother. Because I have found that the mother was a reliable witness of truth and the objective contemporaneous documents which support the mother’s evidence, I accept her explanation of the text message.

4. I also accept the submissions of Senior Counsel for the mother that the contemporaneous documents, together with the mother’s actions in the second half of 2022, clearly demonstrate her intention was not to live in New Zealand but rather remain living in Australia and visit New Zealand on a regular basis and I so find. For those reasons I also reject the father’s assertion that the mother permanently relocated to New Zealand in early 2021.

5. As to the father’s intention, his evidence was that he intended to remain in New Zealand until he obtained New Zealand citizenship which would enable the family to thereafter live in Australia. He was unequivocal that his intention was always to live in New Zealand as a family until that time.

6. The mother’s view of the father’s intention differed from the father’s evidence. She contended it was never the father’s intention for him, the child or the “family unit” to live permanently in New Zealand, which was apparent from his own evidence, as deposed in his affidavit of 5 May 2023.

7. Subsequent to mid-2021, when the father was retrenched from his then employer, the mother forwarded to the father a series of emails providing him with contact details of various head‑hunters and recruiters in Australia to assist him to find employment. According to the mother, if an Australian employer was prepared to sponsor the father for employment in Australia that would accelerate the father’s entitlement to live in Australia, rather than waiting for his New Zealand citizenship.

8. The father was cross-examined about these emails and was adamant that the Australian jobs all had a New Zealand element to them, which would enable him to continue to reside in New Zealand. He was not prepared to make any concessions about the possibility of accepting a job in Australia, had it been offered to him.

9. I accept the father’s intention was that he would remain living in New Zealand until he was eligible for New Zealand citizenship and thereafter he was prepared to assume living in Australia as a family unit. I also accept that his intention was somewhat ambiguous to the extent that he was prepared to consider obtaining jobs in Australia as well as New Zealand during 2022. I find the father’s intention was substantially that he would remain living in New Zealand until he obtained citizenship, however, he was certainly open to the idea of the family living in Australia earlier and in this respect his intention was ambiguous.

10. Because of my findings as to the divergent intentions of each of the parents, I do not accept there was a shared intention of the parents formed sometime in the second half of 2022, that they would live in New Zealand as a family unit, pending the father obtaining citizenship or that there was any shared parental intention which could be described as settled and I so find.

11. The second part of the test is to determine whether the period of time spent in  New Zealand was sufficiently appreciable for it to be said that the underlying reality of the connection between the child and New Zealand was such to justify a finding that he was habitually resident in that country.

12. Prior to his first trip to New Zealand in the second half of 2022, the child had lived in Australia since his birth in 2021.

13. In the second half of 2022 the mother, father and X travelled to the United Kingdom to visit the father’s family for three weeks. The family returned to Australia in the second half of 2022 whereupon the father returned to New Zealand.

14. Thereafter X’s trips to New Zealand with his mother were as follows:

    (1)the second half of 2022  (approximately ten weeks);

    (2)in late 2022 (approximately seven weeks);

    (3)late 2022 to early 2023 (approximately six weeks).

15. In late 2022 the father travelled to Australia and a short time later the family travelled to Country S to attend the mother’s sister’s wedding. They then returned to New Zealand.

16. As to X’s connection with New Zealand, the father contends the following elements support New Zealand being the centre of X’s personal and family life, a place where he was settled and spent an appreciable period of time:

    (a)the mother’s alleged permanent relocation to New Zealand in early 2021;

    (b)between the second half of 2022 and early 2023 the family unit moved to New Zealand and lived together at the father’s home;

    (c)X was enrolled in sport lessons at U Leisure Centre for a period and engaged in V Program on a weekly basis;

    (d)In the second half of 2022 X was enrolled in a play group at W Child Care Centre attending twice per week.

    (e)As X became older his parents made enquiries with Y Centre and purportedly decided to unroll him in the facility; the parents discuss schooling options for X including waitlist for private schools and ask their friends which schools were better than others; the date of his arrival in New Zealand in the second half of 2022;

    (f)X was registered with Z Family Assistance as well as doctors in New Zealand.

17. The mother’s evidence about the father’s contention was as follows:

    (a)she did not permanently relocate to New Zealand in early 2021 and such an assertion is inconsistent with the facts. The trip to New Zealand at that time was of 18 days duration and she did not return to New Zealand again until 2021 where she remained for 28 days to initially undergo a termination and support the father’s mental health before returning to Australia. The father’s contention that the mother was locked out of New Zealand for a year because of Covid-19 is incorrect, as her records establish she in fact visited New Zealand for a period of 28 days in 2021. I refer to my earlier findings about the mother’s intention and whether she relocated to New Zealand as from the date asserted by the father.

    (b)It is factually incorrect to suggest X lived continuously in New Zealand between the second half of 2022 and early 2023. The mother relies on her passenger arrival cards which demonstrate X travelled back and forth between New Zealand and Australia on three separate occasions, and on each occasion the mother referred to the purpose of her travel to New Zealand with X was to “visit friends/relatives”.

    (c)The father’s generalised assertions of X’s enrolment in sport lessons and the V Program is not supported by documentary evidence obtained by the mother. Exhibit MG-33 to the mother’s tender bundle is an email dated 3 May 2023 from U Leisure Centre to the mother, which confirms X only attended a free trial in the sport class in 2022 and did not enrolled in any classes thereafter. Exhibit MG-35 is an email dated mid-2023 from BB Sports Centre to the mother, confirming X attended V Program on two occasions in 2022.

    (d)Exhibit MG-34 to the mother’s trial affidavit is a print out from W Child Care Centre which just is described as “… A free place for parents and their babies to come for a chat and a cuppa…”. The mother’s evidence was that she felt socially isolated and unsupported in New Zealand and she therefore attended W Child Care Centre for assistance.

    (e)X was not enrolled or waitlisted for any schools in New Zealand. To the contrary, he was placed on the waitlist for R Childcare in Suburb CC, New South Wales in the second half of 2022.

    (f)During X’s first visit to New Zealand in the second half of 2022 he contracted Covid‑19 and was therefore registered with the local doctors so that he could access timely healthcare in New Zealand.

18. The mother contends the matters relied upon by the father cannot be seen individually or collectively, to give rise to a meaningful connection with New Zealand or a degree of settled purpose, from the perspective of the child.

19. The mother submits the following factors support the degree of integration of the child in Australia to enable the court to conclude Australia was the centre of the child’s personal and family life, was where he was settled and spent and an appreciable period of time:

    (a)X was born in Australia and is an Australian citizen;

    (b)X has spent approximately 23 weeks of his young life in New Zealand, but has spent approximately 30 weeks outside of New Zealand, with the majority being spent in Australia;

    (c)he has maternal extended family in Australia;

    (d)the mother was at all times remained employed by the New South Wales government, although she was on maternity leave for a period of months prior to her return to Australia to resume her employment;

    (e)X attended a mothers group in Australia for a proximally nine months and the local early childhood Centre;

    (f)he was a patient at a medical centre in Australia and received all recommended Australian immunisations from that practice;

    (g)X attended DD Child Care Centre in Sydney from early 2022, the EE Sports Program from early to late 2022 and was on a waitlist for classes at FF Sports Program;

    (h)the father was willing to move to Australia in the long-term and planned to relocate to Australia upon receipt of his New Zealand citizenship;

    (i)X was on a waitlist for R Childcare in Australia from the second half of 2022;

    (j)the mother at all times maintained Australian health insurance for herself and the child;

    (k)the mother maintained a vehicle in Sydney;

    (l)the mother intended and attempted to sublease her apartment in mid-2022, but was ultimately unable to do so and therefore moved her belongings.

20. Counsel for the State Central Authority submitted that from the father’s perspective, the parents shared a common intention to live in New Zealand, whereupon the mother’s intention possibly changed around late 2022 when she wanted to return to Australia. He appropriately conceded the possible ambiguity of the earlier parental intentions and that the court may find there was no settled agreement between the parties to live in New Zealand.

21. The roots put down by the child in each jurisdiction reflect the practicalities that young babies require activities and healthcare. It was not surprising that the mother attended a mothers group in New Zealand and that both the father and the maternal grandmother had modified their homes for the child. He conceded the mother had maintained her health insurance in Australia which was consistent with her maintaining links to the country, as was the mother continuing to file tax returns in Australia up until the second half of 2022. The mother clearly applied for jobs in both Australia and New Zealand, as did the father, but according to the father he sought any potential job to have a New Zealand element. Notwithstanding the mother’s job applications, she remained employed with her original employer in New South Wales and returned to that employment in early 2023.

22. Counsel also conceded that there was some ambiguity around the mother’s to-do list, which included investigating private schools for the child in the future. Ultimately the child had links in both countries and social networks, as would be expected given that he had spent 23 weeks in New Zealand over three periods between the second half of 2022 and early 2023.

23. Senior Counsel for the mother submitted there could be no doubt that during the first half of 2022 the child was habitually resident in Australia. That was so because the child was born in Australia, he resided in Australia with his primary carer, who is an Australian citizen and the child was integrated in Australia, to the extent a child could be. The court would need to consider whether there was sufficient evidence that the child’s habitual residence had been abandoned and he had acquired a new habitual residence in New Zealand. The evidence before the court could not possibly establish that the child had abandoned habitual residence in Australia as at the second half of 2022 because of the continuing roots the mother and child had to Australia subsequent to the first visit to New Zealand.

24. The court should have regard to the evidence of the mother in preference to the evidence of the father because she was concise, articulate and a reliable historian. Contrary to the mother’s evidence the father was unimpressive and would not make concessions, even when faced with evidence to the contrary. Those issues included the child’s attendance at sport lessons and the V Program in New Zealand and the father’s insistence the mother had been living in New Zealand since early to mid-2021, which was entirely contradicted by her New Zealand passenger arrival documents.

25. The mother’s continuing connection to and roots in Australia include the factors referred to at [64] and [89] of these reasons. X spent the majority of his young life in Australia following his birth, the mother maintained her and X’s roots and connections in Australia and fostered those to a greater extent than any roots created in New Zealand.

26. I accept the submissions of Senior Counsel for the mother and prefer them to those of the State Central Authority.

27. As to the first part of the twofold test in Zotkiewicz, I refer to my findings earlier in these reasons about shared, settled parental intention. As to the second part of the test, I accept the mother’s submission that the child was habitually resident in Australia as at the second half of 2022. Particularly as the child was born in Australia, remained in the primary care of his mother in Australia until the second half of 2022, had never been to New Zealand prior to then, and his mother considered herself habitually resident in Australia. Taking into account my findings as to parental intention and balancing the child’s connection with each country subsequent to the second half of 2022, I consider there has been a sufficient connection between the child and Australia, for the reasons as articulated by the mother and accepted by me, to find that the child was habitually resident in Australia immediately prior to his removal from New Zealand in early 2023 and I so find.

28. Because I have found that the child was not habitually resident in New Zealand immediately prior to his removal in early 2023, but was habitually resident in Australia. The State Central Authority has not established all of the required jurisdictional facts to establish the child’s removal was wrongful.

29. The application of the State Central Authority must be dismissed and I will make the relevant order.

I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.

Associate:

Dated:       21 August 2023