Secretary, Department of Communities and Justice & Voigt

FAMILY COURT OF AUSTRALIA
Secretary, Department of Communities and Justice & Voigt [2021] FamCA 32

File number(s): HBC1057/2020

Judgment of: WILLIAMS J

Date of judgment: 4 February 2021

Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Child brought to Australia from New Zealand – Consideration of the child’s habitual residence as at the date of alleged wrongful retention – Whether father consented or acquiesced to child’s removal – Exercise of Discretion to return – Family Law Act 1975 (Cth), s 111B – Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16 – Return Order

Legislation:
Family Law Act 1975 (Cth), s.111B

Family Law (Child Abduction Convention) Regulations1986 (Cth), rr.14, 15(2), 16

Cases cited:
De L v Director General, NSW Department of Community Services (1996) 187 CLR 640
HZ & State Central Authority [2006] FamCA 446
LK v Director-General, Department of Community Services (2009) 237 CLR 582

Re H (Abduction: Habitual Residence: Consent ) [2000] 2 FLR 294

Re K (Abduction: Consent) [1997] 2 FLR 212

State Central Authority & Handbury [2019] FamCA 668

State Central Authority & Te Mata [2016] FamCA 85

Wenceslas & Director-General, Department of Community Services [2007] FamCA 398

Number of paragraphs: 138

Date of hearing: 21 & 22 December 2020

Place: Melbourne

Counsel for the Applicant: Mr Harper

Solicitor for the Applicant: DCJ Legal, Department of Communities & Justice

Counsel for the Respondent: Mr Turnbull SC

Solicitor for the Respondent: Ogilvie Jennings
ORDERS

HBC1057/2020

BETWEEN:
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE

Applicant

AND:
MS VOIGT

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

4 FEBRUARY 2021

THE COURT ORDERS THAT:
1.The Application of the Secretary, Department of Communities and Justice filed 21 October 2020 and is hereby dismissed.
2.Paragraphs 2 and 3 of the Orders made on 26 October 2020 be discharged.
3.Paragraph 6 of the Orders made on 26 October 2020 be discharged and the mother be entitled to retrieve any passports lodged for safe keeping with the court.
4.The Court requests that the Australian Federal Police remove the names of the child X (female) born … 2019 and the Respondent Mother Ms Voigt born … 1980 from the Watch List at all points of international arrivals and departures in Australia.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Voigt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J

This is an application by the New South Wales Central Authority, the Secretary, Department of Communities and Justice (acting for the Commonwealth Central Authority), filed on 21 October 2020 seeking the return to New Zealand of the child, X, born in 2019 pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent, Ms Voigt is the mother of the child. The requesting parent, Mr D, who lives in New Zealand, is X’s father.
The relevant Regulations are made pursuant to s.111B of the Family Law Act 1975 (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 of a child from his/her country of habitual residence. Both Australia and New Zealand are signatories to the Convention.
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 subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A)For subregulation (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.
(3)A court may refuse to make an order under subregulation (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 subregulation (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 subregulation (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 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 there is a factual dispute between the parents and both Counsel for the Central Authority and Senior Counsel for the mother cross-examined the mother and the father.
The Central Authority asserted that:
(a)the Application was made within one year of the child’s removal from New Zealand;
(b)the child is under the age of 16;
(c)the child has habitually resided in New Zealand, a Convention country prior to her removal on 28 February 2020;
(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.
The Central Authority submitted that the wrongful retention of the child occurred on 13 April 2020 or alternatively 28 May 2020. The father asserted:
(a)he consented to the mother leaving New Zealand with the child on 28 February 2020 for a period of 3 – 4 months on the understanding that the mother would then return to New Zealand;
(b)the child was wrongfully retained in Australia when the mother decided not to return to New Zealand.
The mother opposed the return and relied upon an exception to X’s return to New Zealand, that the requesting parent had consented to or acquiesced to X being removed to Australia, within the meaning of r. 16(3)(a)(ii).
It is not clear whether the mother conceded that X was habitually resident in New Zealand as at the date when it is asserted that X was wrongfully retained in Tasmania. She conceded that if the Court found that the agreement between the parties was for the X to travel to Tasmania for three to four months, then her habitual residence at the point of retention must be New Zealand and the jurisdictional facts are proven. However, if the mother succeeded in her assertion that X’s removal to and permanently residing in Australia was consented to or acquiesced to by the father, then X was not habitually resident in New Zealand at that time.
During final submissions, Counsel for the Central Authority conceded that if the court were to find that the father had either consented or acquiesced to X permanently remaining in Australia, then he would have to concede that X was not habitually resident in New Zealand at the date of the application.
At trial, both parties were primarily focused on whether the father had consented or acquiesced to X being permanently removed from B Town, New Zealand to Tasmania and not X’s habitual residence immediately prior to retention. Despite the submissions and concessions referred to in the preceding paragraphs, I am required to address whether the jurisdictional facts have been established prior to consideration of the defences raised by the mother.
Preliminary Matters
The hearing was conducted electronically via Microsoft Teams, due to the COVID-19 Pandemic.
An electronic hearing enabled the father to seamlessly participate in the proceedings, particularly as the time zones of Australia and New Zealand are relatively compatible.
I wish to express my appreciation to both Counsel for the professional and courteous manner in which the proceedings were conducted.
Background
The mother and father met in August 2018 when the father consulted the mother in a work capacity in B Town, New Zealand and they commenced a casual relationship in May 2019. Their daughter, X, was born in 2019.
According to the mother, the relationship ended on a final basis on 23 August 2019. According to the father he thought that the relationship subsisted until May 2020.
On 9 December 2019, the mother recorded a conversation between herself and the father whereby she raised her intention to return to Australia to live and she asserts that the father consented to her so doing.
In January 2020, the mother and father had a series of discussions about the mother and X relocating to Australia to live. The father asserts that the discussions were about a return to Australia for 3 to 4 months and not a permanent relocation. Both parties agree that text messages were exchanged about the respondent purchasing real estate in Australia, although they disagree whether the property was to be a permanent residence for the mother and X, or an investment property.
On 6 February 2020, the mother sent a text to the father advising that she would be booking flights to Australia one way. During February 2020, the mother sold her motor vehicle, closed her business in New Zealand and packed belongings for her and the child to leave New Zealand.
On 27 February 2020, the father drove the mother’s dog to the airport to travel to Australia by plane, and on 28 February 2020 the mother and child travelled to Australia.
The mother and father continued to exchange text messages between March and April 2020. On 13 April 2020, the mother acknowledged in text messages that she had told people in New Zealand she would be away for three months. On 24 April 2020, the mother and father exchange text messages about the mother remaining permanently in Tasmania.
In May 2020, the father alleges that the mother told him she was not coming back to New Zealand and until then he had thought they were still in a relationship.
On 1 July 2020, the father sent the mother a text to the effect it would be nice once X was old enough to stay with him for a while.
On 7 August 2020, the father sent the mother an email stating amongst other matters that he would have to live with the fact that he let her go.
On 9 October 2020, the father sent a text to the mother advising that he was filing proceedings seeking X’s return to New Zealand. On 21 October 2020, the application in these proceedings was filed and the mother was served with the application on 26 October 2020.
Evidence and documents relied upon by the parties
The Central Authority relied upon the following documents:
(a)Form 2 Application sworn 21 October 2020 and documents attached to that application;
(b)affidavit of Mr C filed 17 December 2020.
The respondent relied upon the following documents:
(a)affidavit in support of Cross Application filed 3 December 2020;
(b)Cross Application filed 3 December 2020;
(c)affidavit in support of Answer filed 3 December 2020;
(d)Answer filed 3 December 2020.
Senior Counsel for the mother cross-examined the father and Counsel for the Central Authority cross examined the mother.
As submitted by Counsel for the Central Authority, and I agree, both the mother and the father held very strong views about the righteousness of their position and were heavily immersed in advocating their respective cases. Both frequently offered gratuitous evidence which was not responsive to the questions asked. Both were controlled and disciplined about what they wanted to achieve and neither were particularly prepared to make concessions adverse to their interests, although the mother did make some concessions. Such an example was her concession as to why she reduced the father’s time with X from daily to biweekly.
The father did not make any concessions and was sometimes evasive. Such an example was his evasive answer and reluctance to provide an explanation why he had worked out an annual amount of child support which he would have to pay if X remained in Australia.
Both were cross-examined at length about text messages and some emails which passed between the parties, the majority of which corroborated the mother’s evidence. The text messages which were contrary to the mother’s assertions that the father had consented and/or acquiesced to X remaining in Australia were those of April 2020, which are Annexure “V1” to the father’s second affidavit.
Where the evidence of the mother and father differs, I prefer the evidence of the mother, as much of her evidence was corroborated by contemporaneous documents, specifically text messages and emails.
Senior Counsel for the mother tendered the following document:

Number Exhibit Description

R-1 Longer recording of telephone conversation on 9 December 2019

I will firstly address the jurisdictional fact of X’s habitual residence prior to addressing the defences of consent and acquiescence.
RELEVENT LEGAL PRINCIPLES HABITUAL RESIDENCE
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.
…
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.
…
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.

As referred to earlier in these reasons, there was little evidence or attention at trial to the issue of X’s habitual residence as at either of the dates of wrongful retention.
It is readily apparent that her habitual residence as at 28 February 2020, when X and the mother travelled to Tasmania, was New Zealand. X was born in New Zealand in 2019 and had lived all of her life in that country prior to her departure to Australia. Both her parents lived in New Zealand, although not together.
As X is a very young child, the intention of her parents is a significant factor. The mother’s case is predicated on moving to Australia as a permanent move, which she asserts is supported by packing up her life, business, belongings and home in New Zealand and seeking to purchase a property in Tasmania which she describes as a permanent home. The father’s case is predicated on the move to Australia as a temporary move for 3 to 4 months, notwithstanding his assistance to the mother in packing up her belongings. The mother’s intention was clearly that X would be habitually resident in Australia, in contrast to the father’s intention that her habitual residence would remain in New Zealand.
Upon arrival in Australia, X continue to be cared for by her mother who has always been her primary carer. There is little evidence of any independent integration in the community, which is unsurprising given X’s age at the date of travel to Tasmania and the alternative retention dates. The mother’s brief evidence in this regard, is at paragraph 48 of her affidavit sworn 3 December 2020.
In the context of the father’s opposition to a permanent move and his intention that X’s habitual residence would remain New Zealand, and the events referred to in these reasons, I am able to find that X’s habitual residence had changed from New Zealand to Australia within an effective period of six weeks after her departure from New Zealand, if the first alternative is the date of retention or, if the alternative date, late May 2020 is the date of retention, some 12 weeks after her removal from New Zealand.
I find that X was habitually resident in New Zealand as at the both of the alternative dates asserted by the Central Authority as the dates of wrongful retention.
I am therefore satisfied that all of the jurisdictional facts have been met. I will now address the defences of consent and acquiescence, as raised by the mother.
RELEVENT LEGAL PRINCIPLES CONSENT AND ACQUIESCENCE
The Full Court in Wenceslas & Director-General, Department of Community Services [2007] FamCA 398 considered the distinct and differing concepts of consent and acquiescence. Consent has to arise before the act of removal or retention, acquiescence can only arise after such an act.
Consent
The respondent mother has the burden of proving on the balance of probabilities, that the father has consented to X being removed from New Zealand. At page 301 of 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 Wenceslas, the Full Court of the Family Court at [257] – [263] reviewed the differing United Kingdom authorities as to whether or not consent can be inferred from conduct. At [262] the court referred to the statements of Hale J as she then was, in Re K (Abduction: Consent) [1997] 2 FLR 212. At 217-8, Her Honour said:
It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wished to retain or remove the child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct.
At [264] of Wenceslas, May and Thackeray JJ said as follows:
It seems to us that the views expressed by Hale J allow for the vagaries often associated with the way in which parents communicate in matters relating to their children. As presently advised…we are of the view that consent can be can inferred from conduct; however, we are also the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.
Acquiescence
In Wenceslas, at [252] – [257] the Full Court analysed the authorities and adopted the approach that acquiescence may be passive, by conduct, as well as active by words. Acquiescence may be inferred by the Court from a course of conduct by the party seeking to rely upon the convention or the regulations, without any words expressed to the other party such as might otherwise be thought to be involved.
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 [2019] FamCA 668 Bennett J at [242], adopting Lord Browne-Wilkinson in Re H (Minors) [1997] AC 72 at [90].
Delay and failure to act may also be relevant. Bennett J in State Central Authority & Te Mata [2016] FamCA 85 at [54] and [55] said as follows:
54. Absence of court action does not necessarily amount to acquiescence, however, a delay, particularly unexplained delay in taking action has been found to be an indication of acquiescence. Lord Justice Butler-Sloss in Re F (A Minor) (Child Abduction) [1992] 1 FLR 548, CA concluded that “acquiescence is a combination of a sufficient period of time coupled with inactivity by the parent without the child, to demonstrate an implied acceptance of the changed position”. In an earlier case, Master of the Rolls, Lord Denning in Re P (GE) (An Infant) [1965] Ch 568 [at 585] said:
Quite generally, I do not think a child's ordinary residence can be changed by one parent without the consent of the other. It will not be changed until the parent who is left at home, childless, acquiesces in the change, or delays so long in bringing proceedings that he or she must be taken to acquiesce. Six months' delay would, I should have thought, go far to show acquiescence. Even 3 months might in some circumstances. But not less.
55. Delay in taking action is further supported in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 (“W & W”), where Waite J held that a father’s inactivity for some 10 months after learning of his wife’s decision not to return amounted to acquiescence. Acquiescence due to inaction was also found in Re D (Abduction: Acquiescence) [1999] 1 FLR 36 where a mother took no legal advice for almost a year and was only prompted to do so when she learnt that the father had been imprisoned.
I will now address the issues of consent and or acquiescence.
The mother’s evidence as to consent and acquiescence
In her Answer filed 3 December 2020, the mother sets out a detailed chronology as to the circumstances of the father’s asserted consent and or acquiescence to X’s permanent removal to Australia.
On 9 December 2019, the mother and father had a conversation, which was recorded by the mother without the father’s knowledge or consent. Prior to the conversation the mother had obtained legal advice about permanently relocating to Australia. During the conversation an exchange took place between the parents about relocation to Australia with the father stating that he “would never reject that, if you want to go back to Australia, go for it”.
The mother was cross-examined about the recording of the conversation. Her evidence was :
(a)she agreed that the father found out that she had recorded the conversation when he was served with a copy of her responding Answer;
(b)she had obtained legal advice about her prospects of permanent removal to Australia prior to the conversation;
(c)she had not previously recorded any conversations between herself and the father;
(d)the recording was more about the father getting abusive when he was not happy;
(e)she did not leave the recording going longer because the conversation was mellow and the father was not aggressive;
(f)she denied that the conversation had been terminated because she had obtained what she had set out to obtain, namely the father’s consent for X to go to Australia;
(g)the discussion was about her financial position in B Town, not if he would permit her to move;
(h)she was conscious of being recorded but still spoke freely primarily stating facts which were written down, although she denied the conversation had been scripted;
(i)she thought there was no doubt that the recording was proof of his agreement, from the comments made during the conversation;
(j)in response to the proposition as to why she did not send something subsequent to the recording to confirm the conversation in writing, her response was because the father did not sign anything and she did not think she needed him to sign anything as she never thought he would stop her relocating to Australia.
Between December 2019 and January 2020, the mother asserts that she and the father discussed in person arrangements concerning her move to Australia with X and during those conversations the applicant said the following:
I would never be so selfish to stop you moving back, you can move back if you want to.
My friend has said that Tas is a great place, and I would love it. He even said that I will probably want to move there myself.
I don’t like it, but it makes sense.
I would never stop you, you can go if you want to.
I look forward to when I can have X here in school holidays.
On 2 January 2020, there was a conversation between the mother and father at the mother’s home when the maternal grandmother was present. The conversation occurred on the couch where the father and the maternal grandmother were sitting side-by-side. The mother, father and the maternal grandmother were discussing whether the mother and X would return to live in Tasmania. During the conversation the mother told the maternal grandmother that she was “coming home” and the father did not say or do anything to indicate any opposition to the mother’s return to Tasmania.
The mother was cross-examined about the conversation and her evidence was:
(a)she had said to her mother “I’m coming home for good”. The mother did not agree with the proposition that her statement was a change of evidence;
(b)she agreed she made something of the father’s silence as she had expected him to raise any opposition he may have had;
(c)she denied that her mother had not said “home for good “and was emphatic that she had done so.
On 3 January 2020, the day after the conversation with the maternal grandmother, the mother asserts that she and the father were seated at her kitchen table and discussed her permanent relocation to Australia with X. The discussion included the mother purchasing a property in Tasmania for her and X to live in. The father said:
I could give you $50,000 towards the house to help out also. But it will be in X’s name and the contract will need to state that and be written so no man could ever take the place from you. I could give you more, maybe once I sell the farm.
In response the mother replied:
That would be great. I could also pay the money back to X in her own bank account so it would be more like a loan.
During cross examination it was put to the mother that the offer to lend $50,000 to her was to purchase a property in B Town. In response to that proposition she was adamant all discussions had been on the basis of looking at property in Tasmania and that there was no way that she as a sole trader could obtain a mortgage to purchase a home where the median house price was $1 million.
On 7 and 8 January 2020, the parties were exchanging text messages relating to real estate the mother was considering purchasing in Tasmania, to live with X. A copy of the messages is Annexure “B” to the mother’s Answer. The mother forwarded a text message to the father with a link to a property, as follows:
“That’s what I want. Can’t pick a fault with that. Perfect position, it is dead end that goes into bush when you look at satellite map”
The father responded:
“That looks great (thumbs up emoji)” and “good size section as well”
The mother responded:
“Yeah real good, X would (sic) like that. I could set her up an obstacle course up the bank. But I can’t have it yet “
The father responded with a clapping emoji.
On 15 January 2020, the mother and father exchanged a series of text messages, which are Annexure “C” to the mother’s Answer. The exchange was as follows:
Father -          “See you’re selling your car already. What’s the go with that?”
Mother -         “I’m leaving. You know that”
Father -          “You haven’t told me when”
Mother -         “Maybe next 4-6 wks”
Father - “Can’t believe you’re leaving soon… I want to be part of X’s life as well, but how can when you’re living in a different country”
The mother was cross-examined about the father expressing sadness at X’s departure. Her evidence was that it would be normal to be upset if X were to be living in a different country. In response to the proposition that the father thought X would be away for 3 to 4 months, her evidence was that was never discussed. When asked whether the concept of 3 to 4 months had been mentioned in any context, her response was that she would give herself three months to see how she felt about living in Tasmania.
On 28 January 2020, the mother and father exchanged text messages which are Annexure “D” to the mother’s Answer. The exchange was as follows:
Mother - “I am really upset about selling the car. It’s just a car, but means a lot to me. It’s the sadness of leaving”
Father - “It must be hard you will have your family to look forward to being around”
The mother was cross-examined about these text messages. Her evidence was that she couldn’t care less about her attachment to the car other than it was her last attachment to New Zealand and she was expressing sadness at leaving New Zealand for good.
On 6 February 2020, the mother sent a text to the father advising that she was going to book flights. The father did not do or say anything to oppose her booking the flights.
On 7 February 2020, the mother and father met in a park and had a discussion during which the father said to the mother:
“I’ll need to look at booking a flight soon so I can come out and see where she is living”.
The mother and father exchanged a further series of text messages which are Annexure “E” to the mother’s Answer. The exchange was as follows:
Mother -         “I am looking at leaving on the 28^th”
Mother - “It’s really shit. I want to cry every time I think about it. But I need to get ahead now to try to get a home for us”
Father -          “Too upset to respond”
Mother - “It is really just like flying via akl to visit your parents. Really not much different”
Father -          “I can’t handle it”
Mother - “I know it’s hard for you. It’s not easy for me either. But I can’t live my life wk to wk with X now. I need a house and she needs her own bedroom and backyard to grow up in”
Father -          “I knew it was coming but now so sad and wrecked”
Mother - “As soon as I can get a place you can visit lots. I just looked at rentals priced just like here. So the sooner I can get a place the better. I’m not renting.”
Father -          “I guess like you said I’m old and just about dead”
Mother - “Stop it please. I never meant that. You hurt me so much over the last months and things were said that neither of us meant. All I am trying to do is get a permanent roof over X’s head. Not living in a rental.”
The mother was cross-examined about the text messages and her evidence was :
(a)the text messages reflect that she wanted a permanent roof and backyard for X;
(b)living in a rental in New Zealand is not consistent with buying a property in Tasmania to live in;
(c)the father knew from 15 January 2020 that she was looking at flight tickets;
(d)the cheapest tickets were available on 28 February 2020.
On 16 February 2020, the mother sent a text to the father informing him that she had used child support money to buy items for X which she would need in Tasmania, which is Annexure “F” to the mother’s Answer.
On 25 February 2020, the father sent a text to the mother asking “when do you want me back for some more stuff”. That text was in the context of the father assisting the mother to move her belongings from her property and store them at his home.
On 27 February 2020, the father took the mother’s dog to the airport to travel to Tasmania. The cost of the transport of the dog was $3000. During cross-examination it was put to the mother that the cost of the dog’s transport was $1000 and that is what she had told the father. The mother denied that proposition and her evidence was that she had told him $3000 as the cost of transport was $2700 plus a bed which she had to buy for the flight.
After the mother and X’s arrival in Tasmania, on 22 March 2020 further text messages were exchanged between the parents. The father sent the following text message to the mother, which is Annexure “G” to her Answer:
“I could have stopped you from taking X to Oz but I am not that selfish”
The mother was cross-examined about the text message and her evidence was that the father knew on 28 February 2020, when she left New Zealand that she had relocated permanently. In response to the question that where the text refers to “I could have stopped you”, the father was referring to travel to Australia for 3 to 4 months, the mother’s evidence was she did not believe that, because it was always very clear that she was going permanently.
On 24 April 2020, the parents exchanged further text messages, which are Annexure “I” to the mother’s Answer. The exchange was as follows:
Father - “Glad you are so happy in Tasmania!” and “Are you still happy to stay over (sic) there permanently”
Mother - “Nothing has changed Mr D. You know we are staying here. Please stop asking.”
Father - “ok just want to make sure”
During cross-examination, the mother was asked whether the response of nothing has changed was because the father had asked if she was coming back. Her response was he asked if anything had changed and she said nothing had changed since 28 February 2020.
On 1 July 2020, the father forwarded a text to the mother, which is Annexure “J” to the mother’s Answer, as follows:
“It’s going to be nice once X is old enough to come over and stay with me for a while”.
On 7 August 2020 the father sent an email to the mother, which is Annexure “K” to the mother’s Answer, which states as follows:
“just writing to express a few things on my mind . Firstly, I really wished we could have worked things out between us instead of you moving to Tasmania when you did! But I guess that is all in the past now, I will have to live with the fact that I let you go. This Covid business is really bad timing for us all at the moment, and I’m looking forward to the day I can hold X in my arms again. I want to be part of her life and be actively involved with X’s upbringing, when I said early on that I wouldn’t change my lifestyle! I should have explained it better to you, because I never meant that I didn’t want to bring up a baby! I meant that I wanted to do a lot of things I’ve been doing in the past such as car racing and travel etc which I can still do with a baby. Anyway I just want to make it clear that I want to be involved with X’s upbringing and I would love to have her stay with me for periods of time in NZ when she is old enough and we can all travel again. I love X dearly and you’re doing such a great job with her your an awesome mum!

The mother was cross-examined about Annexure “H” to the father’s first affidavit. The text message from the father to the mother was as follows:
“Ummm well that’s what you told everyone! You said to me maybe only three months to get a loan and house and you will come back”
The mother’s evidence was that she did say maybe in the context that if she did not like living in Tasmania, then maybe she would come back. When criticised by Counsel for the Central Authority that she could have been more strident and provide an explanation as to why she had changed her mind, her response was the text exchange took place while she was feeding a one year old.
The mother’s further evidence under cross-examination was as follows:
(a)in response to cross examination about the text messages of 12 and 13 April 2020 which are Annexure “X1” to the father’s second affidavit, the mother’s response was that she had never stated she would return in three months but she had said maybe she would return in three months;
(b)in response to the proposition that she could have told the father at that time that he had got it wrong and that she had never said she would be back in three months, she conceded she could have said that, but she was out running at the time;
(c)she had never told her friend that it was just a holiday and the father had not spoken to her friends;
(d)in response to the proposition that her comments about not discussing the issue with the father were evasive, she responded that she did not need to discuss a lie that had been made up;
(e)while she agreed that life was tough in New Zealand, she denied that between December 2019 and February 2020 she would have said anything to the father to obtain his consent to a permanent move to Tasmania;
(f)in response to the proposition that his comment in the recording was an off-the-cuff remark, she responded no and that they had never discussed a short term trip and that there were lots of other texts;
(g)she denied that there had ever been any 3 to 4 months agreement and that there was no misunderstanding in the text messages produced by her that indicate otherwise with words such as “permanent roof over her head” and “I’m not living in a rental.”
In relation to the father’s acquiescence, the mother relied on the father’s conduct between 28 February 2020 and 9 October 2020, when she asserts that he did not directly or indirectly in any form communicate to her that he did not consent to her remaining in Australia with X or that he objected to her remaining in Tasmania with X. The first the mother was aware that the father objected to X remaining permanently in Tasmania this when he advised her on 9 October 2020 that he was filing proceedings and thereafter when she was served with a copy of the application on 26 October 2020.
The father’s evidence as to consent and acquiescence
In support of the Application of the Central Authority, the father swore affidavits on 28 September 2020 and 1 October 2020.
Paragraphs 17 – 31 of the father’s first affidavit depose to his understanding of X’s travel to Australia. The father was unwavering in his evidence that he had consented to X travelling to Australia only for a three to four month period, and that he had never consented or acquiesced to her permanently living in Tasmania. His evidence was that the 3 to 4 month timeframe was to enable the mother to purchase a property in Tasmania to set herself up with some form of rental income, because of the offer from her father to advance her money to enable her to purchase a property.
At paragraph 23 of his first affidavit, the father deposes that the mother told him in May 2020 that she was not returning, and that he did not agree and did not accept her non return. Annexure “H” to his affidavit is a series of text messages, the first of which is referred to at paragraph 85 hereof. The father’s evidence is that the mother’s response acknowledged that she had told everyone it was only for three months but then went on to say that X’s future was in Tasmania.
At paragraph 29 of his first affidavit, the father deposes that he knows the mother would have understood that if she had said to him she was returning to Australia permanently, he would have stopped X leaving New Zealand.
At paragraph 30 of his first affidavit, he deposes to the mother telling him prior to leaving, that she had discussions with friends that she was going away for three months and treating it like a holiday.
Paragraphs 10 to 12 of the father’s second affidavit refers to a series of text messages between the parents over 12 to 13 April 2020. The relevant parts of the text messages are set out in that affidavit and are as follows:
Father –“you have changed your mind? You said 3 months and you will be back!”
Mother –“be a grown-up please. I didn’t know what I was going to be thinking. Put yourself in my position please stop this carry on all the time. I know it’s extremely hard for you…”
Father –“OMG did you say you would you would be back in three months? You told everyone here that it’s just holiday?”
Mother –“I’m not discussing this with you. I don’t like the side of you that is erratic. I will never come back to that. I’m sorry…”
Father –“What??? You don’t make sense! You have made up your mind! Very sad! You give me no chance to be a father to X not share responsibility for her! You’re not thinking about daughter’s best interest at all!!! (sp)”
At paragraph 11 of his second affidavit the father poses that the messages in the previous paragraph demonstrate that the mother acknowledged that she had told him and others that she was going to Tasmania for three months only, but once this subsequently changed her mind. He also deposes that at no time prior to 12 April 2020 did the mother ever raised with him the travel to Australia was permanent.
At Paragraphs 14 to 17 of the second affidavit the father reiterates the agreement was for X to travel to Australia for a short-term of three months and that he was not consulted at all about the mother’s travel plans.
The father was vigorously cross-examined by counsel for the mother. Specifically the father was challenged about the following:
(a)he insisted that the initial taped conversation was about the mother investing in a home rather than doing the maths about the cost of living in New Zealand;
(b)he agreed that during the recording the mother did not refer to any timeframe of 3 to 4 months, and his response was there had been a previous conversation about the timeframe;
(c)he agreed that during the recording in response to the mother expressing a desire about travel to Australia that he had said “I’m not saying no”, but that was in the context of 3 to 4 months;
(d)he agreed that the recording appeared to demonstrate that the conversation was that the mother could not afford to live in B Town and wanted to go back to Australia;
(e)he agreed that he had a discussion with a friend about Tasmania and the prospect of the mother moving there, however that discussion was in the context of a move for a three month period;
(f)he denied the statement in the recording “I don’t like it but it makes sense” and “I would never stop you and you can go if you want” were in the context of a permanent move;
(g)he could not provide any explanation why he and the mother would have a conversation prior to February 2020, about X spending time with him during the school holiday period as referred to at paragraph 1(a)(vii) of the mother’s Answer, when X was so young and any school holiday period was 3 to 4 years in the future;
(h)he denied that the conversation about school holidays was in the context of him contemplating time with X in school holidays when she lived in Australia;
(i)he could not recall being present at the mother’s home with the maternal grandmother on 2 January 2020, although it happened less than a year ago;
(j)he would never have agreed to the mother moving permanently to Australia with X;
(k)he denied the conversation referred to at paragraph 1(c) of the mother’s Answer in relation to advancing $50,000 to purchase a home in Tasmania and stated that he had never contemplated a permanent move to Australia and that any conversation about purchase of a house was to invest in a house in B Town;
(l)he denied that his response to the mother’s texts of 6 January 2020 wanting ‘X to grow up in a nice..’ was a response to the links to properties in Tasmania which the mother was sending to him, and that it related to another text ,which he did not have on his phone and which he failed to produce;
(m)he agreed that the text messages of 7 and 8 January 2020 indicate a positive response by him to the mother’s text of setting up an obstacle course for X;
(n)he stated that the bank required the mother to live in a house to enable her to obtain a mortgage, although the text messages of 7 and 8 January did not refer to that plan;
(o)he agreed none of the mother’s text messages referred to that requirement, and his response was that he did not have the relevant messages;
(p)he agreed with the proposition that if a bank required somebody to live in an investment property it would be longer than 1, 2 or 3 months, but the mother was not going to do that;
(q)in response to questioning about the text messages of 15 January 2020, when the mother advised him that she was leaving, he maintained that the plan for the mother was to buy a house and to remain in this Tasmania for a three month period and that to him, it was never a permanent move;
(r)did not accept that the mother’s text message to him on 15 January 2020 about needing to get on with settling her life, meant a permanent move to Tasmania and hand it was in the context of a three month period;
(s)did not accept that his text message of 15 January 2020 about wanting to be part of X’s life but questioning how that was possible if the mother was living in another country, was in the context of a permanent move and not just a period of three months;
(t)he did not agree that the text messages of 28 January 2020, in particular “it’s a sadness of leaving” were obviously in the context of a permanent move rather than a three month move;
(u)he did not agree that the text messages of 7 February 2020, in particular where the mother refers to the need for a house and X’s need for her own bedroom and backyard to grow up in, were in the context of a permanent move;
(v)he maintained that his text message of 7 February 2020 to the effect that he knew was coming but was now so sad and wrecked, was in the context of a three month move;
(w)he denied that the mother’s text message of 7 February 2020 where she states that all she is trying to do is get a permanent roof over X’s head and that she would not live in a rental, was indicative of a permanent move rather than a three month plan;
(x)he explained his comments in the text referred to in the preceding paragraphs as being distraught at X leaving for three months and feeling sorry for himself;
(y)that he was unable to produce the other text messages which related to these discussions because the mother had changed her Australian phone number;
(z)in response to the proposition that, if the mother’s move was really for a period of three months, in the context of the text messages and having booked a one way flight, he would have been worried about her potential return, he responded that he had complete trust in the mother and had no reason to doubt her;
(aa)he denied being aware that the mother had advised her clients from 25 February 2020 onwards that she was leaving New Zealand;
(bb)he did not consider it unusual that the mother was leaving her rental in New Zealand, giving up her business which she had established for two years in New Zealand, boxed up all of her possessions and made arrangements for her dog to travel to Australia, if the move was for a three period;
(cc)he did not agree that there was no documentary evidence, either text messages or emails to substantiate that the move was for a proposed 3 to 4 months;
(dd)he did not agree that the concept of a 3 to 4 month move had its genesis in the mother’s position that if she decided after living in Tasmania for 3 to 4 months that she did not like it, she would return to New Zealand, and that the decision was hers alone;
(ee)he did not agree that he had used those words and interpreted them in a different context;
(ff)he agreed that the only text messages he could produce were those annexed to his affidavit;
(gg)he disagreed with the proposition that on 23 April 2020 there was an agreement reached that the mother’s future was in Tasmania and that he had subsequently reneged on that agreement;
(hh)he was aware that he could investigate with a lawyer the steps he could have taken to prevent X’s relocation;
(ii)in response to the question how he was going to stop the mother from taking X on a 3 to 4 month holiday he replied because he was the father;
(jj)when questioned what did he mean by his text message of 12 March 2020 referring to only having to pay $10,000 now that the mother was in Australia, he responded that he had looked at the Australian child support obligations in Australia because he was just interested to see the difference between Australia and New Zealand;
(kk)he conceded that he was trying to demonstrate that he was not selfish because he was paying support in New Zealand which exceeded his obligations in Australia;
(ll)he agreed that he had forwarded the text message on 24 April 2020, Annexure “I” to the respondent’s Answer which he asked the mother whether she was happy to stay there permanently and received a response that was the case, prior to forwarding a responding text;
(mm)his evidence was that he was agreeing that he was happy if the mother was happy;
(nn)in response to the mother’s text that “nothing has changed” he did not send any text messages to the effect that the mother should return immediately and that retaining X in Tasmania was unacceptable, and he explained that on the basis that he did not know his rights;
(oo)he disagreed with the proposition that the reason he did not seek legal advice between 10 April 2020 and 24 April 2020, was that he knew and accepted that the mother was living in Tasmania and that was the agreement between the parties;
(pp)he did not accept that he had deliberately misinterpreted the mother’s statements that she may be back in three months if she did not like it in Tasmania, and insisted that any discussions were in the context of a temporary stay of 3 to 4 months;
(qq)he did not concede that the mother’s non-acceptance of a promise to return in three months was him realising that the mother actually liked it in Tasmania, wouldn’t change her mind and his realisation the gate was effectively shut, and maintained that the mother had changed her mind about the 3 to 4 month agreement;
(rr)he agreed the mother’s repeated statements of wanting to provide a stable upbringing and a settled life for their daughter was confirmation of her message, but that was not the intention;
(ss)he would not agree that there was a consistency in the mother’s position from December 2019 and the text messages of April 2020;
(tt)in response to the proposition that the mother had arrived in Australia in February, there were text messages exchanged between the parties over a three month period, culminating in the text message of 24 April 2020, whereby he enquired whether she was happy living in Tasmania and by July 2020 he was enquiring about X visiting him when she was old enough, there was no evidence of any action by him or letters from lawyers demanding a return to New Zealand, he said there was a lot going on behind the scenes;
(uu)he reiterated that there were matters going on behind the scenes despite the fact there was no court action or lawyers letters in March, April and May, demanding X’s return;
(vv)he agreed he had holidayed for one week in July with his girlfriend;
(ww)he agreed the text message of 1 July 2020 in relation to X visiting him when she was old enough, clearly contemplated that there was not any immediate plan to return to New Zealand;
(xx)he did not agree that the questions, prior to X’s departure for Tasmania, about her future and seeing her in the school holidays, at a time when she was six months old, were inconsistent with any agreement to return in 3 to 4 months time;
(yy)he agreed that he has assisted the mother by forwarding her clothes but did not agree that that it was indicative of the mother packing up the remnants of her life in New Zealand, and that was why he was talking about seeing X in the holidays in New Zealand in the future;
(zz)despite the fact that he was still phoning the mother every day and texting a few times as well, as at July 2020 there were no solicitors letters seeking X’s return;
(aaa)in response to the proposition that the email of 7 August 2020, which was a month after the text of 1 July 2020, which included “I’ll have to live with the fact that I let you go” was clearly a contemplation of him having consented to X relocating permanently, he responded that it was a sad situation and he had never consented to a permanent relocation of X;
(bbb)in response to the proposition that the email of 7 August 2020 is his recognition of the deal that the mother is staying permanently in Tasmania and that X will travel to New Zealand to stay with him when she is old enough, he responded by then it was her intention;
(ccc)he agreed that despite daily video calls and frequent text messages which continued between March and October, he did not tell the mother about any action he was proposing for X’s return, but there was action behind-the-scenes;
(ddd)he refuted the contention that when his application for X’s return was filed, he had actually consented to X leaving New Zealand on a permanent basis;
(eee)his evidence was he had seen two lawyers between April and October and that there was action behind the scenes;
(fff)he agreed Annexure “E” to his second affidavit refers to an air ticket for him to travel to Tasmania but it was cancelled due to COVID-19;
(ggg)he rebooked to visit X in August 2020 which was cancelled due to COVID-19;
(hhh)he agreed his intention was not to get the mother and X back to New Zealand as he would not be able to force her to return;
(iii)in July there was a discussion of him travelling to see X on her birthday, which he said occurred prior to him obtaining legal advice;
(jjj)he could not provide any answer as to why there was no letter to the effect that he was going to travel to Tasmania and it was time for the mother honour the agreement to return home, other than the process takes time.
DISCUSSION AND CONCLUSION
In his final submissions, Counsel for the Central Authority submitted that a substantial component of the evidence of the mother’s case was the recording of 9 December 2019. The Central Authority did not object to the mother’s reliance on the recording, even though it was unfairly obtained, for two reasons:
(a)there was no evidence of the law in New Zealand as to admissibility of such a recording; and
(b)the recording diminishes the mother’s reliance on consent.
He submitted that the mother’s evidence was controlled and disciplined as would be expected from a professional sports person, and such control and discipline permeated her actions. The mother obtained legal advice prior to the conversation of 9 December 2019. She alone knew she was being recorded and how such a recording would work for her and was forceful and careful. She structured the conversation in a manner advantageous to her case.

The mother’s sole intention was to obtain the father’s agreement to X relocating to Australia and once that agreement had been obtained she terminated the conversation. If the mother had truly believed the father’s consent was real she would most likely have followed up the conversation with some form of written confirmation about the agreement. Her explanation during cross-examination that it was difficult to get the father to sign documents and that he was reluctant to follow through, was not convincing. She did not provide any explanation why she did not obtain a clear and unambiguous consent from the father.
Counsel for the Central Authority further submitted that the text messages relied upon by the mother were ambiguous and could be read in many ways to support the case of either parent. Specifically, Annexure “H” to the father’s first affidavit was entirely consistent with the father’s evidence that the mother had agreed to a three month stay in Australia. Similarly the text messages at Annexure “A1” of the father’s second affidavit, are examples of her controlled and disciplined behaviour and attempts not to generate any evidence contrary to the mother’s case. These two text messages evidence that there was no agreement by the father for X’s permanent removal to Australia.
Furthermore, the mother’s evidence in relation to the meeting which took place on 2 January 2020 between the father mother and maternal grandmother should not be relied upon. Her oral evidence did not accord with the statements in the Answer.
At paragraph 1(b) of the mother’s Answer she refers to her evidence as follows:
(a)the maternal grandmother said to the respondent
“You have to make up your mind if you are staying here or coming home for good Ms Voigt”,
(b)in response the respondent replied
“I am coming home”
The mother’s evidence during cross-examination about her response during that conversation was “I am coming home for good”.
The conversation was relatively recent, occurring in January 2020 and was of significant importance. Neither of the parents provided much evidence about the details of a highly relevant conversation, and it was submitted that any puzzlement about the conversation must fall in favour of the Central Authority.
The mother relies on the father’s silence during the conversation of 2 January 2020 as indication of his consent to X’s removal. Counsel for the father submitted that as the mother was the gatekeeper of the child’s relationship with the father, it would be unlikely that the father would contradict the mother during the conversation which occurred in the mother’s home and with the maternal grandmother present. His silence should not be construed as evidence of consent.
Furthermore, the court should find that there is a sufficient uncertainty to find that there was no clear actual or implied consent to X’s permanent removal to Australia.
In terms of acquiescence, the father found himself in a very difficult position, as he was dependent upon the good graces of the mother to have any contact with his daughter. It was submitted that he sent the mother’s possessions to her, not because of any agreement by him for a permanent removal to Australia, but because it was the decent and right thing to do and left communication open between the parents for the sake of X. It was not coincidental that his communications with X reduced dramatically after the mother was served with the return application.
Senior Counsel for the mother submitted that although her evidence was clear, consistent and unshaken, the mother did make concessions contrary to her interest, specifically why she had reduced the father’s time from daily to biweekly, following service of the return application.
Senior Counsel submitted that the father was evasive and would not even make concessions when it was obvious to do so. At every opportunity he added the words “three months only” to every answer. An example of the father failing to make an obvious concession was the issue of the annual quantum of an Australian child support assessment. The father would not unequivocally answer the questions until asked by me to do so.
It was submitted that the mother had clearly made her case that the father had consented to X’s permanent removal to Australia. The sequence of events commenced with the recording of 9 December 2019, and if that had been the only evidence, consent would have been difficult to establish. However, the words and actions of the father subsequent to 9 December 2019 leave no doubt that the father consented to X permanently relocating to Australia.
The recording commenced with mutual greetings after the arrival of the father and thereafter progresses to the mother’s statements that it was too expensive for her to live in B Town, she required more support and wanted to go back to Australia. It was apparent that she had notes of her calculations of costs.
The three minute mark of the recording is the crucial spot where after complaining about the cost of living in New Zealand, the mother said that she had spoken to a lawyer and had a great case to return to Australia on a permanent basis. The father’s unexpected response was if you want to go back to Australia, go for it. I would never reject that. That comment, together with everything that happened up until 28 February 2020, when the mother and X left New Zealand, and the subsequent events in Australia validate the existence of an agreement for a permanent relocation.
The criticism levelled at the mother by counsel for the Central Authority about having effectively set up the father is not borne out by the actual recording, as the mother did not terminate the recording once she had the father’s consent, rather the conversation continued about what was pressuring the mother in New Zealand, including her finances, the problems of renting properties, the costs of insurance and clothing and the fact that she had no hobbies. The continuation of the recording for some five minutes or so after his unexpected positive comments about the mother’s travel to Australia, would have afforded him an opportunity to reflect upon and qualify his comments to clarify that he meant a 3 to 4 month holiday to sort herself out, and not a consent to a permanent relocation. It was submitted that the recording was a conversation about how difficult life was for the mother in New Zealand and that it was a natural conversation which was not forced or contrived. I agree with that submission.
During his cross-examination, the father did not disagree with the propositions of the conversations and text messages put to him but rather added, at every opportunity that his comments were in the context of 3 to 4 months travel to Tasmania.
There was no explanation by the father why in January 2020 he would talk about future school holidays for X, when she was three months old, if the agreement was for her only to travel for a 3 to 4 month period. His explanation for why he did so, because he wanted to talk about the future, did not make sense unless the move was in the context of a permanent one.
It was submitted that the mother’s evidence of the events of 2 January 2020 was entirely consistent with the manner in which she answered the question posed by her mother whether she was coming home for good. Her response of “I’m coming home” was specifically to the question and she meant for good. There was no evidence of any contradictory statement by the father nor indeed any evidence of what he said at that time.
There was much evidence about the text communications between the parties prior to the mother and X’s departure on 28 February 2020 however there was no evidence of any text message referring to travel for a 3 to 4 month period. The father’s evidence that he had the evidence but no longer did, should not be accepted.
The father’s evidence that the alleged discussions of purchase of property in B Town should not be accepted as there was no corroborating independent evidence for that proposition, contrary to the links to houses in Tasmania, which the mother forwarded by text to the father. I accept that submission and find that there was no discussion about the mother purchasing a property in B Town, only discussions about the purchase of properties in Tasmania.
There was no evidence in any of the text messages surrounding the links that the proposed properties would be suitable investments, to the contrary the text messages refer unequivocally to the mother and X living in the property, for example the reference to setting up an obstacle course for X, which would be inconceivable for a three-month old child.
Furthermore, the father’s evidence that the bank would require the mother to live in an investment property for a month prior to renting it out, should not be accepted. In any event such a proposition had nothing to do with the 3 to 4 month concept which the father relies upon.
In relation to the text messages prior to X’s departure on 28 February 2020, the submissions were as follows:
(a)the text “I need to get on with settling into my life” on 15 January 2020, which is Annexure “C” to the mother’s Answer is indicative of a permanent move;
(b)the father’s responding text message referring to “living in another country” is inconsistent with a temporary move, but consistent with the father’s position in December 2019, that he accepts that the mother a month later will be living in another country;
(c)the reference to “sadness of leaving” in the text message of 28 January 2020 and the father’s response that “It must be hard for you. You will have your family to look forward to being around” is again indicative of a permanent move and the father consoling the mother. There is no suggestion that she should not go;
(d)the message of 28 January 2020 which refers to a need to settle in my own place and making things tough and the father’s responses “well I’m trying to do as much as I can for you both” and “you admitted you don’t love me anyway so don’t put it all on me” is demonstrative of the father adhering to the agreement struck in December 2019, notwithstanding the difficulties both parties are experiencing;
(e)the text message of 6 February 2020 when the mother advised the father that she was going to book flights, was responded to by the father when the parties met in person on 7 February 2020 and the mother asserts that the father responded by saying that he needed to book a flight soon so he could come out and see where she is living, is again indicative of a permanent move;
(f)the use of the phrase “home for us” in the text message of 7 February 2020 and the responses of the father that’ he knew it was coming” and that he is “now so sad and wrecked”, supports the father’s consent and is demonstrative of a man honouring the agreement struck between the parties in December 2019. Again, there is no mention of a time limit nor a revocation of consent;
(g)the text messages on 16 February 2020 about the purchases of X’s equipment again support the contention that the departure is permanent is permanent.
It was further submitted that despite the father having many opportunities to refer to the limited nature of his consent to X’s departure, or tell the mother that she should honour the alleged agreement to return at the expiration of 3 to 4 months, there was no evidence that this had occurred.
The father’s actions in assisting the mother to pack up a life and watching X’s life being packed up from New Zealand and transferred to Tasmania, and driving X and the mother to the airport for departure is also demonstrative of the father honouring his agreement despite the sadness and personal emotional cost.
I agree with the submissions of Senior Counsel for the mother about the issue of consent.
After considering the evidence of both parties, their conduct and contemporaneous words and the submissions of both Counsel, I am satisfied on the facts of this case and find that the father did consent to X’s permanent relocation to Tasmania and that his actions prior to the removal of X were consistent with having provided his consent, although that consent was not express or written.
In reaching that conclusion, I have had particular regard to the following:
(a)whilst I accept the limitations of a telephone conversation recorded without the knowledge or consent of one of the parties, the father’s comments in reaction to the mother’s complaints about the difficulties of her circumstances in New Zealand, are positive and almost encouraging of a potential move, without any reference to a limited time frame;
(b)I accept that the mother’s oral evidence about the conversation which took place in the presence of her mother on 2 January 2020 differs slightly from her Answer, however I do not consider the discrepancy in evidence would warrant a finding that her response was anything other than she intended to go home one of a permanent basis;
(c)the discussion in the text messages between December 2019 and January 2020, of the father looking forward to having X in New Zealand in the school holidays, when X was three months old at the time, is entirely inconsistent with a move of 3 to 4 months duration. It is impossible to contemplate, given the circumstances of the discussion at the time, that the father’s comments about future holiday time would be on the basis that X would be living permanently in New Zealand, after having a 3 to 4 months holiday in Tasmania;
(d)both parties agree the text messages on 7 and 8 January 2020 related to property in Tasmania and there were no text messages produced by the father to substantiate his claims that there were discussions about purchasing property in B Town;
(e)reference to an obstacle course being set up in the backyard for X, when X was three months old does not sit comfortably with the father’s evidence that the mother intended to remain in Tasmania for a limited period only, nor do the text messages of 7 February 2020, where the mother refers to X needing her own bedroom and backyard to grow up in, looking at rentals which were the same prices as here (B Town), not renting , trying to get a permanent roof over X’s head and not living in a rental;
(f)it is highly unlikely that the mother, given her complaints about her financial position, would have ever discussed purchase of a property in B Town given her evidence about the price of properties;
(g)I do not accept the father’s evidence about the bank requirement to live in a property for a month prior to renting it out and such a concept has no correlation to the three to four month concept;
(h)the father’s assistance with and knowledge of the mother’s actions to finalise her life in B Town, including leaving her rental property, selling her car, packing up her possessions, winding up her business and arranging for the family dog to travel to Tasmania at considerable expense, does not support the assertion that the contemplated move was for only a three to four month period;
(i)the text messages of 12 and 13 April 2020 are consistent with the mother’s evidence that if she did not like living in Tasmania she would reappraise a return to New Zealand after a three-month period;
(j)the father’s failure to assert during any of the contemporaneous text messages between the parents that his agreement to X leaving New Zealand and travelling to Tasmania was for a period of 3 to 4 months, and that he expected her to return to New Zealand at the end of that period.
I accept the submission by Senior Counsel for the mother that the genesis of the father’s asserted belief that X’s removal to Australia was for a 3 to 4 month period, was the mother’s comments to the father that if she didn’t like being back in Tasmania then maybe she would come back and that she would give it three months to see how she felt about being back. I accept the mother’s evidence that it was entirely her decision as to whether or not life in Tasmania met her expectations and it was her choice and hers alone, as to whether she would return to New Zealand at the expiration of that time.
If however, I am mistaken in my finding about consent, I find that the father’s words and conduct subsequent to the removal of X to Australia, were clear and unequivocal that he had acquiesced to the mother retaining the child in Australia on a permanent basis.
In reaching my finding about acquiescence, I have had particular regard to the following:
(a)the text messages between the parents of 24 April 2020, set out at paragraph 81 hereof are clear and unequivocal that the mother is remaining permanently in Tasmania as at that date;
(b)the text messages of 24 April 2020 occurred some 10 to 12 days after the text messages of the 12 – 13 April 2020 which are Annexure “A1” to the father’s second affidavit, which are the text messages which refer to the mother acknowledging having told the father that she had said maybe only three months and are referred to at paragraph 94 hereof;
(c)viewed in the context of the text messages of 24 April 2020, the text messages of May 2020 referred to at paragraph 23 of the father’s first affidavit and which are Annexure “H” of that affidavit, confirm the mother’s version of events that she may return to New Zealand in the event things did not work out for her in Tasmania. To suggest that the messages unequivocally show that the alleged agreement was for travel for 3 to 4 months, is directly contradictory to the text messages of 24 April 2020;
(d)the text message of 1 July 2020, which refers to X being old enough to go and stay with her father, in my view supports the contention of acquiescence to X remaining in Australia;
(e)the email of 7 August 2020 which is Annexure “K” to the mother’s Answer, and which is set out at paragraph 84 of these reasons, which reiterates that the father will have her stay when she is old enough and travel is again permitted. The contents of that email are completely contradictory to opposition to X remaining permanently in Australia;
(f)Inaction and delay by the father in seeking X’s return to New Zealand. There is no evidence of any text messages subsequent to those of 12 and 13 April 2020 where the father has sought X’s return to New Zealand. The text message of 24 April 2020 refers to the mother living permanently in Australia and makes no mention of any alternative plan to seek X’s return to New Zealand. If the father truly sought X’s return to New Zealand, he would have taken action or at least communicated that to the mother subsequent to the text messages of 12 and 13 April 2020 and not wait until October 2020. The fact that there were no text messages or emails demanding return, indeed quite to the contrary, nor any legal proceedings threatened, is highly supportive of the father’s acquiescence to X remaining in Australia permanently. I do not accept the submission that the reason the father did not do so was because he did not want to “rock the boat” with the mother, as she controlled the extent of his communication with X;
(g)a vague statement during the father’s evidence under cross-examination that things were happening in the background, is not evidence that any legal steps had been commenced nor advice obtained about the prospect of returning X to New Zealand;
(h)the text messages about child support in Australia and the father’s reluctance to concede why he would be looking at his future child support obligations in Australia. There is no rationale why the father would look up child support assessment rates in Australia if it were for a 3 to 4 month period. Similarly, the mention of only having to pay $10,000 does not equate to child support for that period. It is evident the father is referring to an annual rate of child support;
(i)the text messages of 24 April 2020 and 1 July 2020 and the email of 7 August 2020 are clear and compelling evidence that the father was maintaining his consent to X remaining in Tasmania permanently or no longer expecting her to return to New Zealand;
(j)the flight which the father booked to visit X in Tasmania in March and which was rebooked in April or May of that year and again attempted to be booked in August 2020, support the proposition that the father intended to visit X where she was living permanently, rather than pursuing any notion of her return to New Zealand.
DISCRETION TO RETURN

At paragraph 29 of HZ & State Central Authority [2006] FamCA 446 the Full Court of this Court referred to the factors relevant to the exercise of discretion to refuse return as follows.
In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 which were:
(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b)the likely outcome (in whichever forum) of the substantive proceedings;
(c)the consequences of the acquiescence;
(d)the situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.”
In this matter the forum which would determine the child’s future in the substantive proceedings is New Zealand, which is a jurisdiction where the best interests of the child and the child’s welfare are paramount in proceedings. Both parents are readily able to access proceedings in both New Zealand and Australia.
The likely outcome of the substantive proceedings would be based on the child’s best interests. The mother’s evidence is that after consulting a lawyer in New Zealand she has an extremely strong case for relocation to Australia. The father did not initiate any proceedings in New Zealand pertaining to X and Hague summary return proceedings were not initiated until late September 2020. If the proceedings were determined in Australia then the father is entitled to seek orders that X return to New Zealand. The father would be able to participate electronically in such an application in Australia even if he were unable to travel to the country, as he participated electronically in these current proceedings.
The consequences of acquiescence are that X would remain with her mother in Tasmania where she has lived since February 2020. X is currently aged 18 months and has lived in Australia for nearly 12 months, the majority of her life. The mother has a stable and secure accommodation and the assistance of family in Tasmania. If she were required to accompany X to New Zealand, and it is her position that X would not be returned without her then she would face all of the trials and tribulations including financial impost which she initially complained of to the father as early as December 2019. Absent the COVID-19 pandemic, the father would be able to readily travel to Australia to maintain a face-to-face relationship with X, indeed as he had planned to visit her for her birthday in 2020.
If the mother were to return to New Zealand she would face many practical difficulties such as obtaining accommodation, re-establishing her business and supporting and caring for X without the assistance of her immediate family. No doubt the father would offer some assistance and financial support, although on the evidence, this support would not be sufficient to overcome the mother’s financial difficulties which she experienced prior to removal to Australia. The father proposes, in the Application, at paragraph VII, that once returned to B Town, X could reside in his family home, he would ensure that she had regular contact with the mother and that a written shared parenting agreement allowing both parents to care for X would be put in place as soon as possible. Such a proposal would place X in the care of a parent with whom she has not had face-to-face contact since February 2020 and limit her contact with her primary carer her mother.
The anticipated emotional effect of an immediate return would separate X from her grandmother, with whom she and the mother have been living and other members of the extended maternal family. On the other hand, X would be reunited face-to-face with her father, whom she has not seen since February 2020. Once COVID-19 travel restrictions have been lifted, then the father is at liberty to travel to Australia to spend time with X on a regular and frequent basis.
In terms of the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order is not made there was no evidence or indeed any submissions by either counsel. However, in this case the exceptions of return, as provided by the regulations have been satisfied.
For the reasons set out herein, I propose to exercise my discretion to refuse X’s return to New Zealand and will make the relevant consequential orders.

I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.
Associate:
Dated: 4 February 2021

[2021] FamCA 32

4 February 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Consent

Jurisdiction

Procedural Fairness

File number(s):	HBC1057/2020
Judgment of:	WILLIAMS J
Date of judgment:	4 February 2021
Catchwords:	FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Child brought to Australia from New Zealand – Consideration of the child’s habitual residence as at the date of alleged wrongful retention – Whether father consented or acquiesced to child’s removal – Exercise of Discretion to return – Family Law Act 1975 (Cth), s 111B – Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16 – Return Order
Legislation:	Family Law Act 1975 (Cth), s.111B Family Law (Child Abduction Convention) Regulations1986 (Cth), rr.14, 15(2), 16
Cases cited:	De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 HZ & State Central Authority [2006] FamCA 446 LK v Director-General, Department of Community Services (2009) 237 CLR 582 Re H (Abduction: Habitual Residence: Consent ) [2000] 2 FLR 294 Re K (Abduction: Consent) [1997] 2 FLR 212 State Central Authority & Handbury [2019] FamCA 668 State Central Authority & Te Mata [2016] FamCA 85 Wenceslas & Director-General, Department of Community Services [2007] FamCA 398
Number of paragraphs:	138
Date of hearing:	21 & 22 December 2020
Place:	Melbourne
Counsel for the Applicant:	Mr Harper
Solicitor for the Applicant:	DCJ Legal, Department of Communities & Justice
Counsel for the Respondent:	Mr Turnbull SC
Solicitor for the Respondent:	Ogilvie Jennings

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	4 FEBRUARY 2021

Number	Exhibit Description
R-1	Longer recording of telephone conversation on 9 December 2019