Secretary, Department of Family and Community Services and Arthur
[2016] FamCA 1119
•22 December 2016
FAMILY COURT OF AUSTRALIA
| SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & ARTHUR | [2016] FamCA 1119 |
| FAMILY LAW – CHILD ABDUCTION – Hague convention application – Application by the Secretary of the Department of Family and Community Services for the return of a five year old child to New Zealand – Dispute over her country of habitual residence – Dispute over father having rights of custody – Dispute over father exercising rights of custody – Where the child was wrongfully removed from New Zealand by the mother – Where the father did not consent to the mother removing the child –– Where grave risk of physical or psychological harm or an intolerable situation is not established – Where it is not established that the return would be against the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms – Application for return granted – Adjournment for any conditions of return. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 13(4)(b), 16(1A), 16(3)(a), 16(3)(b), 29 Care of Children Act 2004 (NZ) ss 15, 16, 29 |
| C v C (Abduction: Rights of Custody) [1989] 1 WLR 654 DP v Commonwealth Central Authority (2001) 206 CLR 401 Harris & Harris (2010) FLC 93-454 LK v Director-General, Department of Community Services (2009) 237 CLR 582 Makita (Australia) Pty Ltd v Sprowles(2001) 52 NSWLR 705 Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 Re F (minor: rights of custody abroad) [1995] 3 All ER 641 Re K (Abduction: consent) [1997] 2 FLR 212 Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 Regino and Regino (1995) FLC 92-587 Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 State Central Authority & Topalogu [2007] FamCA 1337 Secretary, Commonwealth Attorney-General’s Department & Wolford [2014] FamCA 445 Sydneywide Distributors Pty Ltd v Red Bull Australia [2002] FCAFC 157 Wenceslas v Director-General, Department of Community Services (2007) FLC 93-321 |
| APPLICANT: | Secretary, Department of Family and Community Services |
| RESPONDENT: | Ms Arthur |
| FILE NUMBER: | SYC | 4935 | of | 2016 |
| DATE DELIVERED: | 22 December 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 14 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Harper |
| SOLICITOR FOR THE APPLICANT: | Legal Services, Department of Family and Community Services |
| COUNSEL FOR THE RESPONDENT: | Ms Bridgett |
| SOLICITOR FOR THE RESPONDENT: | Feminist Legal Clinic |
Orders
The Application of the Secretary of the New South Wales Department of Family and Community Services filed 5 August 2016 is granted.
The proceedings are adjourned to 9 January 2017 in relation to the terms of the order for return of L, born … 2011 to New Zealand and any conditions or undertaking required for that order.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Department of Family and Community Services & Arthur has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4935 of 2016
| Secretary, Department of Family and Community Services |
Applicant
And
| Ms Arthur |
Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application filed 5 August 2016, the Secretary of the NSW Department of Family and Community Services (“FACS”) seeks the return to New Zealand of L (“the child”), born in 2011. Strangely, the child is sometimes referred to as by alternate spellings of her name in documents prepared by each of her parents over time. She is “L” on her birth certificate and she will be referred to by that name in these reasons.
Ms Arthur (“the mother”) is the child’s mother and she seeks that the application be dismissed. She says that the Court has no obligation to order the child’s return to New Zealand. If the Court finds that there is such an obligation, she argues that the Court should refuse to order her return, the discretion to do so being enlivened because the father consented to the removal and/or because there is a grave risk that the child will be exposed to psychological harm or otherwise placed in an intolerable situation if returned and/or 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.
The proceedings are brought under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Abduction Regulations”) which are the expression in Australian law of the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”). Among other countries, Australia and New Zealand are signatories to the convention. The applicant is the NSW Central Authority appointed under the Abduction Regulations.
The father of the child is Mr B (“the father”), born in 1981.
I note that the action required of the Commonwealth Central Authority by an application under the Convention includes seeking an amicable resolution of the differences, in relation to the removal or retention of the child, between the parents – reg 13(4)(b) of the Abduction Regulations. There is an obvious irony about conducting, what in one sense are forum proceedings, between two locations that are closer together than many areas within Australia are from each other. The family laws of the two jurisdictions are essentially the same and our languages are not dissimilar. Resources put to these proceedings would meet the costs of at least the resolution stages of substantive parenting proceedings in either jurisdiction. That said, the evidence before the Court suggests that it may not be possible to achieve an informed and principled compromise between the parents. In any event I was not told about any such action by the Central Authority in these proceedings.
Document Relied On
The applicant relies on the following:
6.1The Central Authority’s Application (Form No 2) filed 5 August 2016; and
6.2Affidavit of Ms J sealed 9 December 2016.
The respondent mother relies on the following:
7.1 The mother’s response (Form No 2A) filed 24 November 2016;
7.2Affidavit of the Mother sworn 14 October 2016 and filed 24 November 2016;
7.3Affidavit of Ms C sworn 28 November 2016 and filed 29 November 2016;
7.4Affidavit of Ms G sworn 23 November 2016 and filed 29 November 2016;
7.5 Affidavit of Associate Professor K sworn and filed 29 November 2016;
7.6Affidavit of Mr A sworn 22 November 2016 and filed 24 November 2016; and
7.7Affidavit of Richard Paul Sutton sworn and filed 29 November 2016.
Short History
The child was born in New Zealand in 2011. She is a New Zealand citizen and until May of this year, she lived in New Zealand all her life. Her parents are Mr B and the respondent, Ms Arthur. The father was born in New Zealand and as far as the evidence reveals, since at least November 2009 he has lived there. He is a New Zealand citizen. The mother was born in Australia and lived there and in New Zealand as a child. She is a dual citizen of Australia and New Zealand. The parents commenced living together in New Zealand in November 2009 and largely lived together until June 2012. They resumed cohabitation in about August 2014 and finally separated in June 2015.
The mother and child flew from New Zealand to Australia on 19 May 2016[1] and have remained in Australia since that date.
[1] There is reference in the evidence to the removal being on 18 May 2016 but I understood from the parties that it is agreed that the removal was on 19 May 2016.
The parents agree that they had many disputes over money. The mother contending that the father provided insufficient money to meet the household expenses and the father contending that the mother was irresponsible and unreliable with money. The mother alleges and the father disputes that he cultivated illicit drugs. The mother alleges and the father disputes that he abused marijuana and other illicit drugs. The mother alleges and the father disputes that he was violent, controlling, threatening and abusive to the mother and to her daughters.
The father made an application under the Hague Convention in Hamilton, New Zealand in July 2016[2]. On 5 August 2016 the New South Wales Central Authority filed an application in this Court under the Abduction Regulations for the return of the child to New Zealand.
[2] At paragraph 28.4 of the affidavit of the father which is itself an annexure to the affidavit of Ms J sworn 9 December 2016 the father deposes: “My application for relief under the Hague Convention was made to the New Zealand Authority on the 2 January 2016 which was well before I was notified that [the mother] had sought child support. I was subsequently directed to a lawyer and it is sheer coincidence that my formal application under the Hague Convention was made on the 21st of July 2016.” That evidence is inconsistent with the father’s affidavit sworn 21 July 2016. In that affidavit there is no mention of a January application. Indeed, the father says that it was the events of May 2016 that led to his application. In any event, why would an application be made before any removal or retention? Why was there no mention of the circumstances that led to a January application not included in the narrative of the applicant’s case? Learned counsel for the applicant could not explain this aspect of the father’s evidence and did not submit that it was accurate.
The proceedings first came before this Court on 11 August 2016 when orders were made ex parte for service and to secure the child within Australia. A hearing date of 16 September 2016 was fixed. Following service of the application and those orders on the mother the proceedings came back before the Court on 22 August 2016 and further directions were made. Ultimately, a new hearing was fixed for 14 December 2016. Further directions were made on 22 November and 9 December 2016.
The Hearing
The hearing was conducted on 14 December 2016. The applicant and respondent were each represented by solicitors and counsel. The hearing was conducted on the papers and after oral submissions, judgment was reserved.
The Evidence
This and other courts have considered the problem of resolving conflicting evidence in matters which are dealt with on the basis of affidavit evidence alone.
In Regino and Regino (1995) FLC 92-587 at 81,814 Lindenmayer J said:
The resolution of the crucial factual issue in this case, which I have earlier identified, essentially involves a determination by me of the relative credibility of the parties’ conflicting accounts of the events immediately preceding the wife’s departure from the United States with M on 25 November, 1993, and particularly of their differing accounts of what the wife then informed the husband about her intentions as regards her future residence.
Before attempting that resolution, it is appropriate to acknowledge that it is particularly difficult for any court to resolve contested issues of fact on the basis of affidavit evidence only where the court does not have the opportunity, which the taking of viva voce evidence provides, of seeing and hearing the witnesses give their evidence and thus being able to assess their credibility in the light of their demeanour and general consistency, particularly when subjected to a searching cross-examination in the forensic context. Nevertheless, in a case such as this, where, by the very nature of the proceedings, one of the parties resides overseas, and it is therefore impracticable to secure his or her attendance before the court to give oral testimony, the court must necessarily undertake that difficult task and do the best it can to resolve the factual issues upon the material which is before it. In doing so, I believe that the court must be cautious not to unfairly disadvantage the absent party by presumptively giving greater credit to the testimony of the other party who happens to be within the jurisdiction and before the court.
In Re F (A Minor)(Child Abduction) [1992] 1 FLR 548 at 553 and continuing at 554, Lady Justice Butler-Sloss dealt with the problem of there being irreconcilable issues exposed in the affidavits in Convention cases. She said:
If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.
For proceedings under the Abduction Regulations, reg 29 makes special provision for the rules of evidence that apply to certain proceedings. For example and relevantly reg 29(2) provides:
(2) The application under regulation 14, 19A or 25, or a request under regulation 13, 24 or 25 relating to that application, or any document attached to or given in support of that application or request, is admissible as evidence of the facts stated in that application, request or document.
One can understand why that provision is there. It seeks to ameliorate the same mischief at which the Convention itself is partly aimed – the difficulty and unfairness of being required to litigate in a foreign jurisdiction, usually over long distances and often in a foreign language. However, in that way, one of the common law evidentiary safeguards, that is, the scope for excluding unreliable evidence on objection, is not available in relation to the evidence filed in support of an application under the Abduction Regulations. The same latitude is not allowed to the evidence relied on by a respondent. I note however, the allowance in reg 29(3) in relation to the presence of overseas deponents. Of course there remains the capacity and obligation to weigh the evidence.
Learned counsel for the applicant flagged objections to the evidence filed in the mother’s case. Ultimately formal objections were not taken. Little weight could be given to the affidavits of Ms C and Associate Professor K who were put in a hybrid position as experts seeming to express opinions about aspects of the ultimate issue in these particular proceedings, without qualifying themselves to do so[3].
[3] Makita (Aust) Pty Ltd v Sprowles[2001] NSWCA 305; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
Detailed Chronology
The father of the child is Mr B. He was born in New Zealand in 1981 and is currently 35 years of age.
The mother is Ms Arthur who was born in Australia in 1986 and is currently 30 years of age.
The parents started living together in New Zealand. According to the mother, that occurred in November 2009 and the father says it was mid-2010. Nothing turns on the resolution of that dispute.
Apart from the child L, the mother has an older daughter, M, who was born in 2007. Her father is Mr Y. She lives with her father in Town D, New Zealand, and has done so since 2014 in accordance with an order made by a New Zealand court on the application of Mr Y.
The mother asserts that the father has other children. He does not disclose that fact in his affidavits. There is in evidence a copy of the records of the Western Australian Police in respect of a Mr B born in 1981[4]. It was accepted on behalf of the applicant that it is likely that those records relate to the father. Those records include a reference to two incidents at Town E in Western Australia in April 2008 at which a child H B, then aged three, was present. There is reference in related statements to H being the son of Mr B. It is likely that apart from the child L, the father has at least one other child, H, who would be about 11 years of age.
[4] Exhibit 1
The mother moved out of the father’s home about a month before the child was born.
The child L was born in New Zealand in 2011. She is the only child of the parents’ relationship.
The father first saw the child several days after her birth.
The mother moved back in with the father five weeks after the child’s birth. The mother fell pregnant again and sadly, four months after the child’s birth she miscarried.
The mother deposes that in June 2012 she moved out of the father’s home again. The father did not see the child again until March 2013. The father saw the child in March 2013 during a supervised visit, although there is some suggestion in the mother’s evidence that the father saw the child on the day of Family Court proceedings on 24 January 2013. During that separation the mother commenced proceedings in the Family Court at Town V. On 24 January 2013 that Court gave the mother day to day care of the child and exclusive responsibility for the child’s day to day arrangements. The father was given supervised time with the child at a court approved facility. The father did not make an active response in those proceedings and it is agreed that he did not subsequently spend any time with the child at such a facility. The father deposed that he did not participate in those proceedings but he does not say why. Nor does the father say why he did not object, appeal against or later seek to vary, the order that he only have time with the child at an approved contact centre. The answer to that question may be in the agreed fact that the mother did not insist on compliance with that order.
The father’s sister arranged with the mother for the father to spend time with the child in March 2013, supervised by the sister.
The mother deposed that she resumed her relationship with the father in March 2014. She says that upon that resumption, proceedings were commenced in relation to the living arrangements for her older daughter, M. The mother said that without notice to her, a Court ordered that M thereafter live with her father, Mr Y, and that she have no contact with the younger child’s father. It would be remarkable if orders could have been made removing M from primary care of the mother, without notice to her. Even if that occurred, the mother would have been given an immediate opportunity of a hearing at which she could know of and respond to the case made against her. The mother refers to the orders removing M being attached to her affidavit but they are not. What are attached are copies of orders about M, made by the Family Court at Town V on 3 November 2014 and 19 July 2015[5]. In each case, far from orders made without notice to the mother, the orders were made in proceedings between Mr Y and the mother and were expressed to be “by consent”. However the orders in relation to M do restrict the father’s presence around her during time with the mother.
[5] Annexure H to the mother’s affidavit
The father contends that the Town V proceedings concerning M were commenced by the welfare authorities and that their concern was the mother’s poor parenting. There is no evidence to support his contentions about those matters. The mother suggests that the catalyst for those proceedings was concern about M coming into contact with L’s father. That would make sense of the terms of the November 2014 and July 2015 orders expressly referring to Mr B.
The mother moved into the father’s home in August 2014. The father says that the mother asked for his help, that she moved nearer to his home and later moved in with him.
In June 2015 the mother moved out and into a women’s refuge. She commenced proceedings for a Protective Order for her and for the child. She swore an affidavit on 10 June 2015 and on 11 June 2015 a temporary Protection Order was granted by the Family Court at Hamilton. The mother says that the father did not spend time with the child between June and November 2015.
As is referred to above, on 19 July 2015 the Family Court at Town V changed the orders in relation to M. The amended order provides that the mother has contact with her every second weekend during school term from Friday to Sunday or Monday on long weekends and for an additional weekend in each term. The orders provided that rather than not having any contact with the father in these proceedings during certain times, M is to have no contact with him. Those orders were made by consent.
The mother deposed that assault charges against the father went to Court. It appears that both parents were cross-examined. The assault charges were dismissed. The mother says she was told that the Court did not know who to believe. She says that she was advised that if she persisted with her application for a final Protection Order she would again be cross-examined. The mother decided to withdraw her application. The Protection Order proceedings were next before the Court on 3 December 2015.
On 20 November 2015, in formal negotiations, the parents resolved their dispute about the living arrangements for the child and their agreement was reduced to writing. A copy of that agreement is annexed to the father’s affidavit and records among other arrangements, that the father would have unsupervised time with the child. As I understand the mother’s case, she did agree to the terms of the 20 November 2015 document. Certain undertakings had been given by the father in support of that agreement. The mother’s barrister witnessed the mother’s signature on the agreement.
An application was filed by the mother to discharge the temporary Protection Order and to discontinue the domestic violence proceedings. That application was considered by the Court and on 1 December 2015 Family Court Judge Collin issued a minute declining to discharge the order and directing that the Protection Order application proceed by way of hearing on 3 December 2015.
On 3 December 2015 the mother’s barrister who represented her in the negotiations on 20 November 2015 was unable to attend and she instructed another barrister, Richard Sutton, to represent the mother. There was no appearance by or on behalf of the father. The judge was satisfied that notice of his minute of 1 December 2015 had reached the father’s lawyer. He was told that the father’s lawyer knew of the hearing on 3 December 2015 but was appearing in another Court on that date. The father contends that he did not attend at the 3 December hearing because he understood that those proceedings had been resolved by the 20 November 2015 agreement.
Mr Sutton says that he was told by the mother that something had happened on the night of 2 December 2015 which caused her to withdraw her consent to the 20 November 2015 agreement.[6]
[6] Annexure S to the mother’s affidavit
The presiding judge proceeded to grant a final Protection Order against the father and for the protection of the mother and the child. Among other findings, the court found that the father had assaulted the mother in a number of ways, using serious physical violence against her. The mother’s lawyer wrote to her after the hearing. She noted that the Lawyer For Child, Mary Williamson encouraged the mother to only allow the father to have time with the child in the future, if that time was supervised. In the letter, the mother’s lawyer supported that advice and noted that she and the mother had discussed supervision by the father’s sister.[7]
[7] Annexure S to the mother’s affidavit
Again, the father does not say why he did nothing to have the orders of 3 December 2015, set aside.
The parents say that the father spent time with the child between January and April 2016. I gather that the mother contends that those occasions were irregular and less extensive than is asserted by the father. The extent of supervision of the father’s time, if any, is not clear on the evidence.
The mother deposed that despite her history with the father, she repeatedly tried to make her relationship with him work and kept returning to live with him when he promised that he had given up drugs and had changed.
The father says that he became concerned when he could not contact the mother about seeing the child in May 2016 and the child did not spend time with him on the appointed weekend.
The mother says that she made contact with her father who lives in Suburb P in Sydney and he offered to pay her airfares to Australia. On 18 May 2016 the maternal grandmother drove the mother and child to the bus station in Town V. She understood that the mother intended to travel to Auckland and then fly to Australia on 19 May 2016, to visit the maternal grandfather. The maternal grandmother was told by the mother that she and the child planned to return to New Zealand on 6 June 2016.
On 19 May 2016 the mother flew with the child to Australia where she moved in with her father, Mr A, at Suburb P in Sydney. As far as I am aware, the mother and the child continued to reside at those premises as at the date of the hearing.
The maternal grandparents are estranged. The maternal grandmother does not support the mother’s move to Australia. The mother contends that although her mother once sought and obtained an order protecting her from the father, she and the father are now aligned. The maternal grandmother denies applying for such an order and says that the handwriting on the application is not hers. The mother says that she feels as if she has no family support in New Zealand.
The maternal grandmother says that she discovered that the mother had emptied her flat and that she then feared that the mother was planning to remain in Australia. She rang the maternal grandfather, Mr A, and he told her that the mother would not be returning to New Zealand and that she would be taking care of him. The maternal grandmother says that she then contacted the father and told him that she believed that the mother did not intend to return the child to New Zealand and that he should get legal help. The father confirms that communication.
The mother says that on 6 June 2016 she sent a Facebook message to the father informing him that the maternal grandfather’s health was not good and that she intended to stay in Australia. The mother said that the father did not respond to the Facebook message.
As is referred to above, the father made an application under the Hague Convention to the New Zealand Central Authority in Hamilton, New Zealand in July 2016. On 5 August 2016 the New South Wales Central Authority filed an application in this Court under the Abduction Regulations for the return of the child to New Zealand.
APPROACH
Generally speaking the Abduction Regulations require the return of children who were wrongfully removed or wrongfully retained from a convention country. The return is for the purposes of proceedings about the parenting arrangements for those children. In other words these proceedings are in the nature of forum proceedings, rather than proceedings about the merits of competing parenting proposals.
As to when the removal or retention of a child is wrongful, subregulation 16(1A) provides:
(1A) For subregulation (1), a child‘s removal to, or retention in, Australia is wrongfulif:
(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.
As to when the Court can refuse to make an order for return, subregulation 16(3) provides:
(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.
The effect of reg 16 of the Abduction Regulations, as it applies to the case argued by the parties in these proceedings, is that:
(a)The Court must order the child’s return to New Zealand if the applicant satisfies the Court that she was wrongfully removed from New Zealand. She was wrongfully removed if:
(i)She was habitually resident in New Zealand immediately before the removal on 19 May 2016;
(ii)Her father had rights of custody and was exercising those rights or would have been exercising them but for the removal; and
(iii)The removal of the child from New Zealand on 19 May 2016 was in breach of the father’s rights of custody.
(b)If the applicant cannot bring the circumstances within those requirements, the application will be dismissed.
(c)If the applicant can bring the circumstances within those requirements the Court must return the child to New Zealand however, it may consider not doing so, if and only if, the mother establishes that:
(i)The father consented or acquiesced to the removal; or
(ii)There is a graverisk that returning the child to New Zealand would expose her to physical or psychological harm or otherwise place her in an intolerable situation; or
(iii)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.
I turn to elements of the case. First, the applicant must bring the circumstances within the scope of the Abduction Regulations.
Wrongful Removal
Habitual Residence
The child L is under 16 years of age. The first contentious issue in relation to wrongful removal is whether she was habitually resident in New Zealand immediately before her removal on 19 May 2016.
In Secretary, Department of Family and Community Services & Padwa [2016] FamCAFC 57,(2016) FLC 93-701, the Full Court (Bryant CJ, Murphy and Kent JJ) dealt with a child removed from the Netherlands in December 2015. In that decision the Court reviewed the authorities and in particular, LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”), in the following terms:
WHAT PRINCIPLES GOVERNED THE APPLICATION?
31.The High Court (French CJ, Gummow, Hayne, Heydon & Kiefel JJ) dealt with the question of habitual residence under the Regulations and the Convention in LK. Having (at [21]) noted that the explanatory report on the Convention described habitual residence as a “question of pure fact, ‘differing in that respect from domicile’”, at [22] the High Court said:
22.To approach the term only from a standpoint which describes it as presenting a question of fact has evident limitations. The identification of what is or may be relevant to the inquiry is not to be masked by stopping at the point of describing the inquiry as one of fact. If the term “habitual residence” is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.
(footnote omitted)
32.In Re B (A Child)(Habitual Residence: Inherent Jurisdiction),[8] Lady Hale and Lord Toulson supporting Lord Wilson’s decision said:
57.We fully agree with Lord Wilson’s reasoning and conclusion on the issue of habitual residence. He has described the identification of the child’s habitual residence as overarchingly a question of fact (para. 46). At the risk of appearing pedantic, we would prefer to describe it as a mixed question of fact and law because the concept is a matter of law but its application is a matter of fact …
33.Returning to LK, the High Court said:
23.Having regard, however, to the stated determination to eschew definition of the expression in its use in the Abduction Convention, and other instruments derived from the work of the Hague Conference, it would be wrong to attempt in these reasons to devise some further definition of the term intended to be capable of universal application. Rather, it is sufficient for present purposes to make two points. 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.
…
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.
Purpose and intention
28.Although intention is a necessary element in deciding domicile of choice, and “habitual residence” is chosen as a connecting factor in preference to domicile, 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.
29.First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous.
…
34.… 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.… 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.
(emphasis added)
34.In the course of its reasons in LK the High Court considered what was said by the Court of Appeal of New Zealand in Punter v Secretary for Justice (“Punter”).[9] The High Court said:
44.… 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.
35.The shift away from the concentration on shared parental intention in determining habitual residence is evident from the UK Supreme Court’s decision in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre and ors intervening),[10] AR v RN (Habitual Residence)[11] and Re B (A Child) (Habitual Residence) (above). Although not binding on us, uniformity with decisions made in other jurisdictions interpreting the same Convention is desirable at the very least, and the UK jurisprudence is consistent with what the High Court has decided in LK.
36.Crucially, the High Court went on to say in LK:
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.
(footnotes omitted)
37.It is of considerable importance that the High Court justices themselves highlighted the words “from the child’s perspective”.
38.In determining habitual residence the ultimate question for the trial judge was whether, immediately prior to 19 December 2015, the child’s presence in the Netherlands had a degree of settled purpose from the child’s perspective, in all the circumstances of the case, to result in the conclusion that the child was habitually resident in the Netherlands.
(footnotes omitted)
Discussion
Therefore the question is whether, immediately prior to 19 May 2016, the child’s presence in New Zealand had a degree of settled purpose from the child’s perspective, in all the circumstances of the case, to result in the conclusion that the child was habitually resident there.
The facts that support a finding that the child was habitually resident in New Zealand immediately before her removal in May 2016 are:
(a)She was born in New Zealand and she and her parents lived there throughout her life.
(b)The parents lived together and apart but during the child’s life, always in New Zealand.
(c)The father and perhaps the mother had paid employment in New Zealand.
(d)The parents litigated against each other and in relation to each other and the child in the Courts of New Zealand.
(e)The mother consented to orders on 3 November 2014 and 19 July 2015 whereby she has contact at least every second weekend in school terms and during school holidays, with her nine year old daughter, M, who lives with her father in Town D, New Zealand.
As I understand the mother’s case about the child’s habitual residence immediately before the removal, it is as follows:
(a)LK (above) is authority for:
(i) a Court determining a question of habitual residence is to take into account a wide variety of circumstances; and
(ii)the past and present intentions of the person in question will often bear on the significance of circumstances, such as significance of circumstances, such as, the duration of a person’s connections with a particular place of residence; and;
(iii)the younger the child, the more important it is to examine the circumstances of the person or persons upon whom the child is immediately dependent for care and housing; and
(iv)citing Punterv Secretary for Justice [2007] 1 NZLR 40:
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.
(b)The mother is a dual citizen of Australia and New Zealand and she lived in both countries as a child. She has a parent in each country; and
(c)In this instance the mother was fleeing domestic violence and left New Zealand to return to her home in Australia in order for her and her child to be safe; and
(d)Prior to departure the mother had very little connection with New Zealand. She had been living in emergency accommodation and other temporary accommodation. She was estranged from her own mother due to the maternal grandmother’s abuse of alcohol. The child had little contact with paternal relatives. The mother and child were leading a transitory lifestyle in order to be safe from harm; and
(e)It is conceded that before departing from New Zealand, the mother’s intentions were somewhat ambiguous.
The submissions in the mother’s case also address circumstances and events after the removal. In my view they cannot be relevant to this issue. Similarly, reference is made to the proposition that habitual residence can be lost in one day. Again, the question before this Court is the circumstances immediately before the child’s removal.
There is no doubt that upon her birth, the child was habitually resident in New Zealand. The child’s parents then lived in New Zealand and had done so for some time and apparently as part of the normal business of their lives. It is the applicant’s case that there was no change to that situation up to and including 19 May 2016. The question arises, how could the child’s habitual residence be changed?
There is no foundation for the proposition, as seems to be submitted, that Australia has always been the mother’s “home”.
The general position in relation to the habitual residence of children of parents who lived together, is that the children take their habitual residence from that of their parents and neither parent can thereafter, unilaterally change the habitual residence of the children. The facts of LK are of little assistance to the mother’s case because in LK the parents agreed to the removal of the children from Israel. Their understanding of the terms of that agreement was said to be different but they agreed. Although for some purposes at least, the mother contends that the father consented to the child’s removal from New Zealand, there is no evidence to support that contention, as will be referred to later in these Reasons.
If the mother could unilaterally change the child’s habitual residence, she may have been able to give evidence that would support such a finding. She would have the difficulty, as was conceded in her case, that on departure her intentions were somewhat ambiguous. Her evidence reveals that on the one hand, as a result of telephone conversations with her father on or about 19 May 2016, she flew to Australia so she could live with him; but on the other hand, prior to her departure she told her mother that the trip was temporary. On 6 June 2016 she sent a message to the father to the effect that it was intended as a temporary trip and that it was only after being there for some time that she decided to stay.
The mother’s case is that she and the child now have no connection with New Zealand. I was not referred to any evidence to suggest that the mother’s daughter and the child’s sister, M, has left New Zealand. She represents an obvious and important connection.
I am satisfied that the child was habitually resident in New Zealand immediately prior to her departure from there on 19 May 2016.
Rights of Custody
The next question in order to assess whether the child comes within the Abduction Regulations, is whether the father had rights of custody for her.
Regulation 4 provides:
Meaning of rights of custody
(1)For these Regulations, a person, institution or other body has rights of custody in relation to a child if:
(a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2)For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3)For the purposes of this regulation, rights of custody may arise:
(a)by operation of law; or
(b)by reason of a judicial or administrative decision; or
(c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.
Elizabeth Dawe is a barrister practising in Hamilton, New Zealand. She swore an affidavit which was attached to the applicant’s application. She deposed that ss 15 and 16 of the Care of Children Act 2004 (NZ) (“the New Zealand Act”) include the duties, powers, rights and responsibilities of guardians and the rights include the right to determine issues such as changes in the child’s place of residence. For the purposes of these proceedings I accept that the New Zealand concept of guardianship incorporates rights of custody.
Ms Dawe deposes that s 17 of the New Zealand Act describes the circumstances where guardianship arises between a parent and a child. Section 18 of that Act operates as an exception to s 17 and provides that in respect of a father who was not married to the mother or in a civil union with her, among other circumstances, a father who is identified on the child’s birth certificate is a guardian. She deposes that the father is identified on the child’s birth certificate. A copy of the certificate, so endorsed, is annexed to the application.
There was no meaningful challenge to that evidence.
It is the mother’s case that the father did not have rights of custody immediately before the removal of the child on 19 May 2016. The submissions made on behalf of the mother seem to rely on two propositions.
First it is argued that the father lost his rights of custody because of the parenting orders made by the Family Court at Town V on 24 January 2013.
The operative part of those orders provides as follows:
On application made to it, the Court orders that:
(a)the following person during the times stated has the role of providing day-to-day care for
[L]… 2011
until the child reaches the age of 16 years (or until an earlier specified date or event as the case may be):
[Ms Arthur]
While exercising the role of providing day-to-day care for a child, you have exclusive responsibility for the child’s day-to-day living arrangements, subject to any conditions stated below and to any Court order.
If you are a guardian, unless your role or another guardian’s role is modified by a Court order, you must act jointly (e.g. consulting whenever practicable with an aim of reaching agreement) when making guardianship decisions for a child.
(b)the following person has supervised contact with
[L]… 2011
during the following times and in the following ways
[Mr B]
Supervised contact at a Court approved supervised contact facility
Sections 15 and 16 of the New Zealand Act provide:
15 Guardianship defined
For the purposes of this Act, guardianship of a child means having (and therefore a guardian of the child has), in relation to the child,—
(a)all duties, powers, rights, and responsibilities that a parent of the child has in relation to the upbringing of the child:
(b)every duty, power, right, and responsibility that is vested in the guardian of a child by any enactment:
(c)every duty, power, right, and responsibility that, immediately before the commencement, on 1 January 1970, of the Guardianship Act 1968, was vested in a sole guardian of a child by an enactment or rule of law.
Compare: 1968 No 63 s 3; Family Law Act 1975 s 61B (Aust)
16 Exercise of guardianship
(1) The duties, powers, rights, and responsibilities of a guardian of a child include (without limitation) the guardian’s—
(a) having the role of providing day-to-day care for the child (however, under section 26(5), no testamentary guardian of a child has that role just because of an appointment under section 26); and
(b) contributing to the child’s intellectual, emotional, physical, social, cultural, and other personal development; and
(c) determining for or with the child, or helping the child to determine, questions about important matters affecting the child.
(2)Important matters affecting the child include (without limitation) -
(a) the child’s name (and any changes to it); and
(b) changes to the child’s place of residence (including, without limitation, changes of that kind arising from travel by the child) that may affect the child’s relationship with his or her parents and guardians; and
(c) medical treatment for the child (if that medical treatment is not routine in nature); and
(d) where, and how, the child is to be educated; and
(e) the child’s culture, language, and religious denomination and practice.
(3) A guardian of a child may exercise (or continue to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to the child, whether or not the child lives with the guardian, unless a court order provides otherwise.
(4) Court order means a court order made under any enactment; and includes, without limitation, a court order that is made under this Act and embodies some or all of the terms of an agreement to which section 40(2) or section 41(2) applies.
(5) However, in exercising (or continuing to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to a child, a guardian of the child must act jointly (in particular, by consulting wherever practicable with the aim of securing agreement) with any other guardians of the child.
(6) Subsection (5) does not apply to the exclusive responsibility for the child’s day-to-day living arrangements of a guardian exercising the role of providing day-to-day care.
Compare: 1968 No 63 s 3; Family Law Act 1975 s 61C (Aust)
Section 29 of the New Zealand Act provides:
29 Court may remove guardians
(1) On an application for the purpose by an eligible person, the court may make—
(a) an order depriving a parent of the guardianship of his or her child; or
(b) an order removing from office a testamentary guardian or court-appointed guardian; or
(c) an order revoking an appointment of an additional guardian made undersection 23.
…
It is asserted in the written submissions made on behalf of the mother at paragraph 5.26:
It is submitted that the issues of custody and access have been dealt with in New Zealand and the Mother is entitled to rely of the terms of the Parenting order giving her exclusive responsibility of (sic) the child. This is supported by the Affidavit of Richard Paul Sutton sworn 29 November 2016.
That would support the mother’s case, if it were so. However, Mr Sutton does not say that the effect of the order is to give the mother exclusive responsibility for the child or to extinguish the father’s rights as a guardian. Importantly, if that was the situation, Mr Sutton could have said it and he did not. The effect of Mr Sutton’s evidence is that the written agreement of the parents dated 20 November 2015 is not itself binding and without further action by the Court it cannot vary the Court’s order. That seems to be the import of s 40 of the New Zealand Act.
Section 16(3) of the New Zealand Act states that rights of guardianship can be exercised by a guardian who does not live with the child. Therefore, the child does not need to live with her father for him to exercise rights of guardianship. Section 29 of the New Zealand Act states that a Court has the power to remove rights of guardianship from a guardian by a specific order. There is no such order in relation to the father.
The second limb of the mother’s case seems to be that by his conduct, including alleged domestic violence, alleged lack of support, alleged lack of interest, and lack of involvement in proceedings, the father forfeited his role as a guardian of the child. No support is provided for that contention. I know of no authority for such a proposition and was not provided with any.
I am satisfied that at the relevant time, the father had rights of custody in relation to the child.
Was the Father Exercising Rights of Custody?
The next issue is whether the father was exercising his rights of custody or would have been exercising them but for the child’s removal.
In my view, there is no doubt that the father would have been exercising his rights of custody but for the removal. He was not given the opportunity but it is highly likely that the father would have liked to be involved in any decision made on or after 19 May 2016 in relation to the child permanently leaving New Zealand. Both parents say that the father had been spending time with the child in the period leading up to her removal from New Zealand, although the amount and frequency of time deposed to by the mother and father differed.
In the event that, as the mother asserts in the alternative, the father agreed to the relocation then he was thereby exercising his rights of custody. That said, I do not accept that the father did agree.
Was the Removal on 19 May 2016 in Breach of the Father’s Rights of Custody?
There is no doubt that the removal was in breach of the father’s rights of custody.
From the time of her birth, the father had the right to be consulted and heard about a relocation of the child. Pursuant to s 16(2)(b) of the New Zealand Act he had the right to:
… determine for or with the child ... questions about important matters affecting the child, such as changes to the child’s place of residence (including, without limitation, changes of that kind arising from travel by the child) that may affect the child’s relationship with his or her parents and guardians.
The mother’s unilateral removal of the child and her subsequent decision to retain the child in Australia was a denial of those rights. The relocation was likely to affect the child’s relationship with her father. Indeed, at least in large part, it was designed to do so.
It follows that I find that the child was wrongfully removed from New Zealand on 19 May 2016. I am required to order her return to Australia unless the mother can establish a basis for enlivening a discretion to refuse such a return and the discretion is exercised to refuse that return.
The Defences
I have found that the Abduction Regulations apply to the child. The mother seeks to establish one or more of three defences which would enliven in the Court, discretion to refuse to order the child’s return. She seeks to establish the defences in reg 16 (3)(a)(ii), or (b) or (d).
Regulation 16(3) provides relevantly:
(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:
...
(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
…
(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.
Consent or Acquiescence
In order to establish this defence the mother must establish that the father consented to the removal or later acquiesced to it.
The determination of an issue about consent was discussed by the Full Court of this Court in the case of Wenceslas v Director-General, Department of Community Services (2007) FLC 93-321 (“Wenceslas”).[12] At paragraph 262 the Full Court referred to the views of Justice Hale in Re K (abduction: consent) [1997] 2 FLR 212 at 217-8 (“Re K”) as follows:
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 wish to retain or remove a 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.
[12] See Secretary, Commonwealth Attorney-General’s Department & Wolford [2014] FamCA 445 at 46 and State Central Authority & Topalogu [2007] FamCA 1337 at 44-45.
The Full Court in Wenceslas continued (at 264):
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 inferred from conduct; however, we are also of the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.
It was held in Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 (“Re M”) that consent does not imply that the person concerned is happy or content with the outcome that has been agreed.[13]
[13] See page 188 and 190 of the judgment of Justice Wall in Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171.
Each case must be decided on its own facts and in any event, no two cases are the same.
Discussion
In order to determine whether the applicant can establish that the father consented to the removal of the child from New Zealand, it is necessary to consider the evidence of the circumstances leading up to the removal.
The mother deposed that she told the father on three occasions that she was moving to Australia. She says that:
(a)In about June 2012 she came home to find drugs growing at the premises she shared with the father. It is the evidence of the mother that she asked the father to get rid of the drugs he was growing at his premises and that he responded to the effect:
“No, they aren’t mine and if you go to the police I will get … who owns them to burn down your mum’s house with you in it.”
The mother deposed that she then said words to the effect:
“Then I will go to Australia with the girls.”
The mother deposes that he responded to the effect:
“I will get my friend to track you down and kill or hurt you. I don’t care which.”
The father categorically rejected that evidence.
The submission made in the mother’s case is, at paragraph 6.8 of her written submissions: “The father’s response is made by a threat of violence and it is submitted that this cannot be accepted or viewed as a refusal to consent, rather his threat to kill the Mother forces her and the child to eventually leave the country in order for her and her child to be safe.” That is an unusual submission. The question is not whether or not something constituted a refusal to consent but whether or not there was consent. Accepting for the purposes of the argument, the mother’s evidence of the conversation, there is nothing in that conversation suggesting that the father consented, quite the contrary.
(b)The mother deposed that in around March 2013 she told the father that she was intending on moving to Australia with the child. She said that the father consented and said words to the effect: “That’s fine. I can’t stop you.”
The fact is that the mother did not move with the child to Australia in March 2013. Consent must be real. It must be positive and it must be unequivocal. Again accepting the mother’s evidence as accurate for the purpose of the argument, it cannot be that by those words spoken in March 2013 in relation to a proposition said to be put at that time, the father could be really, positively and unequivocally consenting to something that was to happen more than three years later.
(c)The third instance of asserted consent arose after the removal. As was cited in the mother’s written submission, consent must occur prior to the removal. Dealing with that same evidence in relation to an assertion that the father acquiesced to the removal, the evidence is that on 6 June 2016 she sent the father the Facebook message about her father’s health and that she intended to stay in Australia and the father did not respond.
Silence is not acquiescence. The mother says she sent the Facebook message on 2 June 2016. There is no evidence that the father received that message. Assuming he did, on or about 21 July 2016, the father made application to the New Zealand Central Authority for action under the Hague Convention. In between those times, there is no evidence of any action or communication from the father from which it could be known or inferred that he accepted or was otherwise sanguine about the removal.
Conclusion on Consent and Acquiescence
The father did not consent to the removal of the child from New Zealand on 19 May 2016. Nor did he later acquiesce to that removal.
Grave Risk
The mother argues that the Court has discretion to refuse to order the child’s return to New Zealand because her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, pursuant to reg 16(3)(b).
In DP v Commonwealth Central Authority (2001) 206 CLR 401 (“DP v Commonwealth Central Authority”), the majority of the High Court (Gaudron, Gummow and Hayne JJ) said at page 417-418:
[41] ….. On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
[42] Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
[43] Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
[44] These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
[45] That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
(footnotes omitted)
The mother’s counsel said that in the event that the Court ordered the child’s return to New Zealand, the mother would also return. That position is understandable but in the context of these proceedings and the evidence of the mother’s difficulties in New Zealand, it is nevertheless to the mother’s credit.
It is the mother’s case that an order for return would create a grave risk that the child would suffer psychological harm because of:
a)the father’s violent and abusive conduct;
b)the father’s drug use;
c)on a return the child would be homeless. The mother and child cannot live with the maternal grandmother, the father or any member of the paternal family;
d)the mother is particularly vulnerable because she has a learning disability and suffers from depression; and
e)For all those reasons, the child cannot be protected in New Zealand.
Turning to the elements of the mother’s argument in respect of this defense:
The father’s alleged violent and abusive conduct:
The evidence about violence and abuse in the mother’s affidavit is to the following effect:
·It is the mother’s evidence that a couple of days after the parents started living together, the father had a fight with his cousin and punched him in the face;
·The father was verbally abusive towards the mother commencing about one month after they started living together and he later became violent to her;
·The father required the mother to ask his permission about everything she did. Otherwise, the father became angry and abusive. He said words to the effect: “You are a lazy, fat cunt.”
·Throughout the parents’ relationship the father was physically and verbally abusive to the mother, and later to the child. The violence became worse after the mother fell pregnant. It included the father kicking and punching the mother in the back when they were in bed or punching the mother in the presence of the child M;
·For periods of two weeks at a time when she was pregnant, the father’s violence against the mother was nearly every night. He would often punch and kick her in the back when they were in bed or hit her in the lounge room;
·The father secured a new job and he would get angry and call the mother names and be physically violent to her;
·About a month before the child was born the mother had had enough of the violence and she moved out;
·As is referred to above, in about June 2012 the father threatened to have someone burn down the house of the mother’s mother, with the mother in it. If the mother moved to Australia the father threatened to have a friend track her down and kill or hurt her;
·The parents moved back together in about August 2014. Between then and June 2015, the father tried to strangle the mother, he punched her in the face and kicked her in the back and bottom. During that period the father first hit the child. He hit her around the head and on her bottom. He hit her on more than 10 occasions. In about May 2015 the father hit the mother nearly every day or every second day.
·In June 2015 the mother left the father for the final time.
·Criminal charges were brought against the father, presumably arising out of the events leading up to separation. The mother deposed that those charges went to trial and that: “[The father] denied everything and I was cross-examined at length. The mother deposed that the police told her that the case was lost because “the judge couldn’t tell who was telling the truth”. The mother says that she thereafter no longer trusts the New Zealand courts to protect her.
As is referred to above, the father denies ever having been violent to anyone.
Much of the mother’s evidence is general. As to more specific evidence or records that might support or corroborate the mother’s allegations:
·The mother swore an affidavit on 9 October 2012 in support of her application to the Family Court in Town V for parenting orders about the child[14]. In that affidavit she said that during the first year of her relationship with the father everything seemed to go well. As is noted in the applicant’s case, that is very different to her evidence referred to above. She deposed in the 2012 affidavit that her relationship with the father deteriorated after he lost his job. He became unpleasant to live with, argumentative and verbally abusive, putting the mother down and criticising her. She said that he became angry when they found out she was pregnant with the child. The first incident of violence occurred at the end of the first year of their relationship. The father started an argument and said: “You know I can punch you”. He then punched her arm. When the mother was eight months pregnant the father yelled at her for putting the dog in the shed after his chain broke. He kicked the dog repeatedly and the dog hid under a coffee table. The father lifted the table to get at the dog and banged the mother’s leg with the table. That was painful and caused bruising. She deposed that the frequency of emotional and physical abuse increased over time until it was an everyday occurrence.
[14] Annexure E to the Mother’s affidavit
The mother deposed that the father abused the child M. In the beginning he appeared to be a good step-dad but over time he changed and became horrible and unfeeling towards her. If M asked him for a hug he would tell her off and push her away. He would tell her off for asking for food.
The mother referred to the threat made by the father to have a mate burn down the home of the maternal grandmother, with the mother in it.
The father threatened to take the child L from the mother in order to stop the mother leaving him.
·The mother swore a further affidavit in support of her parenting application on 14 January 2013[15]. She deposed that the father asked her why she was applying for parenting orders about the child and tried to find out the mother’s address. The mother refused to give her address, giving him her mother’s address as a point of communication.
[15] Annexure F to the Mother’s affidavit
·Mary Williamson was appointed Lawyer for Child on 25 October 2012. In a memorandum to the Court dated 17 December 2012 she advised the Court that[16]:
[16] Annexure G to the Mother’s affidavit
oThe respondent father had taken no steps in the proceedings.
oThe Ministry of Social Development – child youth and family services advised that there were three notifications in relation to the child in January of 2012. They related to difficulties between the parents when they were living together. At the time of the memorandum there were no open or current matters with the department and it had never taken any formal steps in relation to the child.
oNeither of the parents had a criminal history. There were two recorded incidents of family violence involving the police with the parents. They occurred before separation, in June and August 2012.
oThe mother supported supervised time for the father and Ms Williamson agreed.
·A Minute of the Judge prepared on 24 January 2013[17] records that the father was served in the parenting proceedings brought by the mother but he did not take any steps or file any papers. He did not appear on an earlier Court date but appeared on 24 January 2013 and agreed to the child living with the mother but asked that no final order be made about his contact with the child. The mother’s papers had never been tested but she said that her relationship with the father was abusive on his part. The judge elected to proceed to make final orders on all issues and the father’s contact was to be supervised at a contact facility.
[17] Annexure D to the Mother’s affidavit
·Annexure I to the mother’s affidavit is the intake notes of Crisisline Services which the mother accessed in May and June 2015. On 2 June 2015 the mother met with a service worker. The mother said that on 21 May 2015 the father became angry with the mother’s daughter (presumably L) and then started yelling at her and the mother. He barged into the mother’s room and grabbed the mother by the throat calling her names including “useless bitch, fat bitch”. He released his grip and pushed her back. On Monday 25 May the father became angry again and began yelling and swearing at the mother, putting her down and calling her names. He grabbed her hair and yanked her head towards the board hitting the mother’s temple five times which caused a big lump and bruising. The child was present for that assault and was upset. The mother picked her up and the father punched the mother on the arm, also hitting the child. The child ran under a table and crouched on the floor with her hands over her head. All the while the father was yelling abuse at the mother. The mother reported the violence to police the next day and gave a statement.
·On 10 June 2015 the mother swore an affidavit in support of an application for a Protection Order. In that affidavit the mother provided more detail about the events of 25 May 2015. She said that her older daughter was not present on that day and that her argument with the father was about a power bill. The mother told the father that she had used his money that was intended to pay a power bill, on food shopping for the week. She told him that she would pay him back on Thursday. She deposed that the father became angry and told her that she was spending his money. He called her “a liar” and a “fat cunt”. He was very close to her face as they stood near the oven. He was yelling and she turned her head away from him. He lunged at her, grabbed a clump of her hair on the right side of her head and pulled. He was screaming that he “hated ‘cunts’ like me and ‘fucking liars’”. He banged her head against the oven. Her left forehead hit a chopping board that was lying on the top of the oven. He hit her head on the chopping board about five times. Each time he hit her head he held it down and yelled in her right ear. He called her a “liar”, “a fat cunt” and said “that I needed a kick in the face”. The mother said that she thought of hitting the father with a frying pan but did not want to get into (more) trouble for hitting him. The mother was hurt by the father’s assault. The father suddenly let go of the mother and stepped away. The mother screamed at the father that she hated him. He said that it was not his fault and that she “needed a good hit in the face”. The father walked away. The mother was crying. The mother deposed that the child looked scared. The father came back with a telephone. He was still angry and accused the mother of giving out his telephone number and he didn’t want people ringing her up. He threw the telephone on the kitchen table and it came apart. The father walked around the kitchen table and lunged at the mother again. She bent down to pick up the child. The father began to punch the mother in the left kidney. She picked up the child and the father backed away. The mother said something to the father and he threw another punch at the mother. That punch hit the mother on the shoulder and also hit the child on her hand. The mother let the child go and she hid under the table. The mother was crying and went to comfort the child. The father told the mother to get out of the house. She said that she could not go because she had no money. The parents slept in their different bedrooms that night and the next day after dropping the child at kindy and doing errands and volunteer work, the mother returned home to pack a bag and collected the child and went to her mother’s home. The mother reported the assault to the police and the following day attended the Q (medical) Clinic. The statement given by the mother to the police was in similar terms to the wording of her affidavit of 10 June 2015 which is set out above. The Family Violence Report Supplementary Sheet dated 26 May 2015 also recorded that the mother arrived at the police station on that date in a distressed state. Presumably based on the mother’s report, the sheet records that:
othe violence from the father had been getting steadily worse over the last several months;
oThere were several assaults that she did not report;
oThat the father is controlling of her, wanting to know who she calls, he does not want her to have her own money and will not allow her to work. She is even secretive about her volunteer work as she believes he would stop her from doing that as well;
oThe “police photographed the limp (presumably “the lump”) to the left side of [ARTHUR’S] forehead. There is a bruise starting to form. She states this is painful. She also states that she has pain where he grabbed her hair and pulled it. She also has pain in her arm from where he punched her.”
·On 8 June 2015 the Q Clinic set out a report of observations made of the mother on 27 May 2015. The observations include:
…
Looks well
No LOC (I take this to mean “Loss of Consciousness”)
Small hematoma on L side forehead
No bruising of flank
…
Mild lower L lat chest wall tenderness
…
Mild tenderness L upper arm laterally
…
…Use Panadol
Soft tissue injuries only
The final note records: “Assaulted by partner – blows to head and L side chest wall”
·On 10 June 2015 a form “Information for Police Where Application made for Protection Order” was completed. I take it that the form was completed by or on the instructions of the mother. As to the types of physical abuse the following are ticked as being applicable:
§Chokes or strangles applicant
§Kicks, bites or hits applicant with fist
§Throws something at applicant
§Pushes, grabs or shoves applicant
The following types of psychological abuse are ticked as being applicable:
§Makes applicant do something humiliating or degrading
§Humiliates applicant in public
§Threatens to hurt applicant
§Deliberately destroys or harms something belonging to applicant
§Humiliates applicant in front of family or friends or mates
§Threatens to hit or throw something at applicant
§Puts down applicant(s) family and friends
§Throws or smashes or hits or kicks something
§Insults or swears at applicant
§Tries to keep applicant from doing something she wants to do
The form shows the frequency of that conduct as “daily” and as having persisted throughout a relationship of between one and five years duration. As to whether the applicant’s children were abused, “No” is selected. That endorsement is inconsistent with the mother’s evidence. The form confirms that there are allegations of drug and or alcohol abuse but not of mental health problems.
·On 11 June 2015 a temporary Protection Order was granted against the father and for the protection of the mother and the child. The order prohibited abuse, threats and damage by the respondent or someone on his behalf. Further prohibitions applied when the parents do not live together. The form of the order refers to the Domestic Violence Act 1995 (NZ). In making the order the judge was satisfied about the necessary jurisdictional matters – conduct within specified descriptions; a relationship of a specified nature and the Court being satisfied that the respondent is using, or has used, domestic violence against the applicant, or a child of the applicant’s family, or both; and the making of an order is necessary for the protection of the applicant, or a child of the applicant’s family, or both.[18] The judge was also satisfied that a risk of harm or hardship would or might arise if notice was given (to the father) before the order was made.
·As is referred to above there are records produced by the Western Australian Police in respect of the father. Those records include a reference to alleged incidents at Town E in Western Australia in April 2008. Those records include the criminal and traffic history for the father. The father had no criminal convictions. There were two charges of common assault in April 2008, each of which was withdrawn by the prosecution. There were also three motor vehicle offences established, each of which resulted in a fine. The records include unsigned statements purportedly from Ms X, a former partner of the father, being the mother of the child H, aged three and from the father’s mother and sister. The statement from Ms X refers to possessive and threatening behaviour towards her by the father and specific incidents on 6 and 12 April 2008. The statement asserts that about 3.00 am on 6 April 2008 the father grabbed Ms X by the windpipe with his left hand and proceeded to choke her. He pushed her onto the bed and punched her on the side of her face, eyes, mouth and back of her head with his clenched right fist. He punched her more than 10 times and called her a whore while doing so. He punched her once in the left chest. He threatened her that he would kill her before he would let her leave. He grabbed her right arm with his left hand and either punched or kicked her on the right thigh. He started to hit her on the left ribs. He threw her back on the bed, climbed into the bed himself, cuddling their son, H, and telling him “that is how he treats whores”.
The second incident was at about 11.00 am on 12 April 2008. Ms X was having a shower when the father ripped the shower curtain open and accused her of sleeping with his friend. Without saying anything further he smacked her lips using his right palm.
The unsigned statement from the father’s mother was to the effect that between 3 and 13 April 2008 the father was substantially with her and that he and H slept at her house each night. The import of the statement was that the father could not have assaulted Ms X during that period. The unsigned statement by the father’s sister is of a similar import and value.
In the context of withdrawn criminal proceedings, the unsigned statements within the records of the Western Australian Police are of no probative value.
·Ms G swore an affidavit in the proceedings on 23 November 2016. She currently resides in Asia but deposed to being a long term friend of the mother’s. That affidavit seeks to corroborate the mother’s evidence in relation to the father’s alleged abuse of her throughout their relationship. However Ms G’s affidavit is almost entirely a hearsay document and therefore little weight can be placed on it.
[18] See ss 3, 4 and 14 of the Domestic Violence Act 1995 (NZ)
The father’s drug use:
The evidence about the father’s drug use is as follows:
·Early in the parents’ relationship the father commenced taking drugs when he hurt his back;
·The father lost his job as a result of being found with drugs in his car;
·The father took drugs throughout the parents’ relationship;
·When the father secured a new job, his drug taking increased. He spent most of the mother’s pregnancy out the back of the house smoking marijuana;
·When the mother moved back in with the father after the child’s birth the father continued to smoke cannabis;
·In about June 2012 the mother came home to find drugs growing at the premises she shared with the father;
·The mother says that since the final separation “[The father] has also told me he was doing ‘P’ (a methamphetamine) sometimes with his boss and the violence has also been getting worse.”[19]
·The father concedes that he has been an occasional user of marijuana but denies that his use was frequent. He says that for periods when he lived with the mother he was subject to random drug screens by his employers. He asserts that he never failed such a test. He attached to his affidavit of 8 December 2016 a copy of a drug screen taken that day[20]. The collecting medical centre form states that the screen was for substances including cannabinoids, methamphetamines, cocaine and amphetamine type substances. There is no evidence as to the supervision of the provision or custody of the sample. The form records that the father passed the screen. A handwritten form purportedly from a Mr O says that the father worked for a food production company, was subject to random drug testing and never failed a test.
[19] Paragraph 37 of the mother’s affidavit. It is not clear whether the final part of that sentence is a quote from the father or an observation of the mother. If it is the latter, there is no detail about that violence in the mother’s case.
[20] Page 16 of 36 of the affidavit of Ms J
It is an agreed fact that the father used marijuana. There is no independent evidence as to the extent or impact of that use.
On a return the child will be homeless. She cannot live with the maternal grandmother, the father or any member of the paternal family
The mother says that she has no funds and no accommodation or support in New Zealand. That would be consistent with the parents’ arguments over money and the failure to pay a power bill. It would be consistent with the mother borrowing $1,000 from her father for airfares to Australia. The maternal grandmother has offered to help her daughter and granddaughter. However, the fact that the maternal grandmother gave evidence for the applicant confirms a current level of estrangement between her and the mother. If necessary, those matters may be able to be addressed with conditions for return.
The mother is particularly vulnerable because she has a learning disability and suffers from depression
The maternal grandfather says in his affidavit “[The mother] has had some special needs since she was young including a learning disability and a speech impediment”. The mother in her own affidavit deposes to having a learning disability and attaches some documentation from her childhood including a speech pathology report from 1996 which says that she had attended sessions with a speech pathologist for four years. She also deposes to having had depression since she was 16. The mother deposes that while her learning disability does not affect her parenting abilities, it makes her vulnerable to people who are abusive and controlling.
Ms C swore an affidavit in the mother’s case. She is a social worker and says that she has approximately 15 years clinical experience with the last 10 years being mostly in a women’s health setting. She works regularly with women at the first point of disclosure of domestic violence as well as those at different stages of their experience. She met with the mother on 25 November 2016 and will not be providing ongoing support to the mother. The report annexed to her affidavit was prepared based on her meeting with the mother and reading the mother’s affidavit prepared for these proceedings. Therefore Ms C’s report is not that of a treating practitioner[21]. In this jurisdiction expert evidence is almost invariably given by a single expert and it is unfortunate that such an approach was not taken here. Ms C’s report and verifying affidavit do not comply with the requirements of r 15.62 of the Family Law Rules 2004. Ms C expresses her opinion about the nature of domestic violence about perpetrators and victims. She says that women with learning difficulties, those who are socially isolated and those who had a difficult childhood may be more vulnerable and may have more difficulty in accessing supports to ensure their safety. The mother confirmed those problems in her case. She told Ms C that she did not have strong connections with any family members in New Zealand and could recall few friends there. She identified (as having) low self esteem, partly because of the father telling her it was all her fault and how he “got off” the assault charge. She took that to mean that even the police thought it was “all her fault”. The mother gets confused with the father. Even though she has had no contact with the father for a while, she sometimes thinks that she should just “buy a ticket and just go back there with [the child]”. Ms C opined that such a reaction is consistent with those of victims of domestic violence. The mother told Ms C that there are excellent support responses available to her in New Zealand but that she has not been able to gain full protection from those measures in the past. She puts that down to it being her fault somehow. She is confused about the assault charges being dropped. The mother knows of the terms of the Protection Order in force in New Zealand but she told Ms C that she did not think she would call the police if the father breached those orders. When asked why, the mother said that she did not think it would do any good. When asked about where she would live the mother said she would probably go back to the father, or maybe the refuge.
[21] See Rule 15.41 of the Family Law Rules 2004.
Associate Professor K swore an affidavit in the mother’s case. She is an Associate Professor in the School of Social Sciences at a University and is the Co-Convenor of a family violence research organisation and says that she has had 30 years experience in researching responses to domestic and family violence, sexual assault and child protection and has worked in direct service provision in those areas. She has not interviewed the mother but has reviewed “the affidavits provided by [the mother] and the attached police and court records from New Zealand; statements and records from psychology and welfare professionals in Australia and New Zealand; and relevant research literature”. Associate Professor K deposes to having read the Expert Witness Code of Conduct in the NSW Civil Procedure Rules and agrees to be bound by that code.
The NSW code is similar to the provisions of the Family Law Rules 2004 about expert witnesses. The witness has not identified all of the particular material that she has reviewed and relied on for her opinions. Taking her statement about the material she has reviewed literally, it appears that she has read the mother’s evidence but not the applicant’s evidence and some other material that may or may not be before the Court. As is referred to above in this jurisdiction the normal approach would be to appoint a single expert on a particular issue. That would mean a joint letter of instructions and the provision of agreed material from the Court file and would have avoided some of the problems that have arisen. Unfortunately Associate Professor K has been put in the position of a partisan witness about one of the fundamental questions for the Court.
An example of the problems of the attached report is found in the paragraph at the foot of page 5 of the report. There the report writer opined that the father “did not show any concern that [the mother] had moved to Australia with [the child]”. What could be the possible foundation for such a comment from someone who has never even spoken to the father?
As is indicated above, little weight can be placed on the affidavits of Ms C or Associate Professor K. Again, in my view the problems arise from the way they were appointed and the tasks they were apparently set.[22]
[22] Makita (Aust) Pty Ltd v Sprowles[2001] NSWCA 305 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
For all those reasons, it is claimed that the child cannot be protected in New Zealand.
It is the mother’s case that she is a particularly vulnerable person because of her learning disability and depression. She did not have sufficient personal supports in New Zealand and has lost confidence in the authorities there. The crux of her case is that although there are structures, services and regimes in New Zealand that would provide a safe environment for her and for the child, she did not take advantage of them and she fears that she would not be able to take advantage of them in the future. It is her case that, having come from a broken home herself, she persisted in trying to make things work with the father, despite his conduct. She says she believed him when he said he had reformed and she wanted a father for the child.
I understood from the mother’s counsel that the mother does not contemplate there being any future parenting proceedings in relation to the child. That is of significant concern. The fact is that the mother sought and obtained parenting orders in relation to the child in New Zealand and now apparently has no plans to either comply with those orders or to have them varied. The fact is that the mother needs the agreement of the father or the permission of a Court having jurisdiction in respect of the child, in order to change her residence from New Zealand. Presumably the mother will receive some advice about that course.
Discussion
In terms of the observations in DP v Commonwealth Central Authority about the grave risk defence, in the circumstances of this case:
·The burden of proof is on the mother.
·The mother must establish that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place her in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned.
·Consideration of this exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
·Necessarily there will seldom be any certainty about the prediction but certainty is not required. What is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
·The exception is to be given neither a narrow or wide meaning but the meaning its words require.
All cases are determined on their own facts but I note that in, In Re F (minor: rights of custody abroad) [1995] 3 All ER 641 the Court of Appeal of England and Wales found inter alia and for the first time on an appellate ruling in England and Wales, that the defense of grave risk was made out. Unlike the case before me, the allegations of violence made by the mother in that case were unchallenged. The father elected to offer no evidence.
In Harris & Harris (2010) FLC 93-454 being a case in which the trial judge was upheld on her findings based on another defence, the Full Court rejected the first instance finding of grave risk of physical or psychological harm because the risk of harm to the children was not sufficiently identified. The evidence in that case was that on return the parents would not be living together and there was no evidence that the father had ever breached a domestic violence order. However, as to the degree of threat, among other findings of violent abuse, there were hospital records that enabled the trial judge to find that the father had on two different occasions, broken the mother’s arm. Further, in that case, the father conceded that he had threatened to kill the mother.
Horrifying as the mother’s evidence is in these proceedings, there is nothing in the corroborated evidence let alone in the agreed evidence, of that order here.
Here the mother’s allegations are categorically denied. The closest thing to corroboration in respect of the May 2015 allegations, is the fact of a bruise on the mother being photographed on 26 May 2015 and on 27 May 2015 a medical clinic observed: a small hematoma on the left side of the mother’s forehead; mild lower left lateral chest wall tenderness; and mild tenderness to her left upper arm laterally. A judge found on an undefended basis that the father had abused the mother. As to evidence that contradicts the mother’s allegations, charges arising out of the mother’s allegations were dismissed in contested proceedings, after the parents had been cross-examined. The mother says she was told that the judge did not know who to believe.
Importantly, although threats were allegedly made, there is no evidence of physical violence when the parents did not live together. The father was never found to have breached a Protection Order.
As is mentioned above, while the mother claims that she (and therefore the child) cannot be safe in New Zealand that is not because there are no adequate systems and services. Rather, it is the mother’s case that she is psychologically unable to consistently make use of the protections that are available. She brings no evidence from a treating practitioner or from another expert qualified to express an opinion about her own capacity in this regard. Of course, a respondent has an interest in avoiding return and more than her own evidence and her own conduct will normally be required to establish a defence.[23]
[23] Per Butler-Sloss LJ in C v C (Abduction: Rights of Custody)(1989) 1 WLR 654 at 661
Lest there be any suggestion that the issues are not understood, I accept that family violence can have a devastating impact on victims. I accept that victims can be and often are, rendered vulnerable and will often have difficulty in accessing services. In many cases they will be so destabilised as to be incapable of consistently defending and enforcing their rights and of presenting as credible witnesses. I accept that for victims who are already marginalised by the breakdown of extended family structures and disabilities, such as learning difficulties or mental health issues, the problems are exacerbated. Serious family violence is a crime. It is usually cowardly and disgraceful conduct and as it is alleged here, it is directly antithetical to the civilised order of things where the strong should protect the weak and partners should support and not brutalise or humiliate each other.
However, there is a distance between those propositions and a finding of grave risk within the terms of reg 16, let alone plucking a finding of fact of family violence out of ambiguous and contested circumstances. Circumstances that have been found by a competent court to not support such a finding, albeit on a more stringent evidentiary standard.
I accept that unlike the past, the general business of the convention is now most often concerned will evidence about women fleeing domestic violence. Nevertheless, the principle behind the Convention is a sensible one. Decisions about a child’s welfare are usually best made in the place with which they have the strongest connection. Child care staff, medical practitioners, police, family members, friends and neighbours who have had recent or regular or important or any contact with the child will usually be located in that place. In these proceedings, I take it that the mother’s older daughter remains in New Zealand. I saw no mention in the mother’s case about the future contact between L and M but one would expect that parenting proceedings about L would need to address her relationship with her sister. A professional who provides an assessment of the parents and the sisters would best undertake that work in New Zealand.
In my view the mother has not established that the return of the child to New Zealand would expose her to a grave risk of psychological harm or placed in an intolerable situation. The mother’s case is based in part on her experience of unstable accommodation and lack of financial support. The Court has the capacity to establish conditions in respect of return. Those conditions could ensure, at least pending a New Zealand Court dealing with those issues on an interlocutory basis, that on return there was appropriate accommodation for the mother and child, adequate financial support, proper safeguards if needed in relation to maintaining protection from any interaction or communication between the parents. If needed the father could be invited to provide or secure those matters as a condition of return. The mother would have an opportunity to be heard in regard to such conditions.
Conclusion on Grave Risk
The evidence does not support a finding that on return to New Zealand, the child would be exposed to a grave risk of psychological harm or placed in an intolerable situation.
Understandably but very appropriately, the mother says that she would return to New Zealand if the child is required to return. The child is very young and is not capable of protecting herself in any meaningful way. She is entirely reliant on her carers. However, it has not been successfully argued that the risk of psychological harm to her would warrant the description, grave.
The fundamental principles of Australia relating to the protection of human rights and fundamental freedoms
In written submissions, counsel for the mother submitted that reg 16(3)(d) of the Abduction Regulations adopts Article 20 of the Convention which is as follows:
The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
Counsel referred to Articles 9, 19 and 30 of the United Nations “Convention of the Rights of the Child”, which, it was submitted, state that parties shall ensure that a child is not subjected to any form of violence, injury, abuse or neglect. Counsel also referred to the United Nations “Declaration of the Elimination of Violence against Women”.
No oral submissions were made on this topic but by her written submissions, it was put by counsel for the mother that returning the child to New Zealand would breach her fundamental human rights and freedoms, given the nature and seriousness of the alleged domestic violence. Without more I assume that the arguments made in relation to grave risk apply in respect of this defense. The mother has not established the defense.
Conclusion
I am satisfied that the child falls within the provisions of the Abduction Regulations. She was habitually resident in New Zealand immediately before her removal from New Zealand on 19 May 2016. The father had rights of custody in relation to the child, was exercising those rights and would have continued to exercise those rights but for her removal from New Zealand. The Court’s discretion to consider not ordering the return of the child to New Zealand is not enlivened. The mother could not establish that:
·the father consented or subsequently acquiesced in the removal or retention; or
·her return would expose the child to a grave risk of physical or psychological harm or otherwise place her in an intolerable situation; or
·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.
The Court is therefore not able to consider refusing to order the child’s return to New Zealand.
The application of the Secretary of the New South Wales Department of Family and Community Services shall be granted. The parties will be required to assist the Court in relation to the mechanics of the order for return and any conditions or undertakings that may be required.
I certify that the preceding one hundred and thirty eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 22 December 2016.
Associate:
Date: 22 December 2016
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