Secretary, Department of Family and Community Services and Smollett
[2017] FamCA 1082
•21 December 2017
FAMILY COURT OF AUSTRALIA
| SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & SMOLLETT | [2017 ] FamCA 1082 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application by the Secretary of the Department of Family and Community Services for the return of the child to New Zealand – Where the mother travelled to Australia with the child – Whether the father consented to the retention of the child – Where the Court finds the child was habitually resident in New Zealand – Where the mother failed to establish that the father had consented to the child being retained – Where the Court finds that the child was wrongfully retained in Australia by the mother – Orders made for the child to be returned to New Zealand – conditions imposed. |
Care of Children Act 2004 (NZ) ss 15, 16, 97
Family Law Act 1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 1A, 2, 16
Hague Convention on Civil Aspects of International Child Abduction 1980
Arthur & Secretary, Department Of Family & Community Services And Anor [2017] FamCAFC 111
De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640
DP v Commonwealth Central Authority (2001) 206 CLR 401
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Punter v Secretary for Justice [2007] 1 NZLR 40
Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606
Re F (A Minor) (Child Abduction) [1992] 1 FLR 548
Re K (Abduction: Consent) [1997] 2 FLR 212
Re S (A Child) (Abduction: Custody Rights) [2002] EWCA Civ 908
Re S (A minor) (Custody: Habitual Residence) [1998] AC 750
Secretary, Department of Family and Community Service & Padwa (2016) FLC 93-701
State Central Authority & Abdalle [2012] FamCA 1151
Wenceslas & Director-General, Department of Community Services (2007) FLC 93-321
Zotkiewicz & Commissioner of Police (No. 2) (2011) FLC 93-472
| APPLICANT: | Secretary, Department of Family and Community Services |
| RESPONDENT: | Ms Smollett | ||||
| FILE NUMBER: | SYC | 6905 | of | 2017 | |
| DATE DELIVERED: | 21 December 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 5 December 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Harper |
| SOLICITOR FOR THE APPLICANT: | Department of Family and Community Services |
The Respondent appeared in person
Orders
THE COURT ORDERS THAT:
That the Applicant and the Respondent, Ms Smollett born … 1993, (the mother) make such arrangements as are necessary to ensure the return of the said child, B born … 2015, to New Zealand by 20 January 2018, in the company of the mother, and upon the conditions following these orders, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.
For the purpose of facilitating the Respondent travelling with the said child to New Zealand in accordance with paragraph 1 of these orders, paragraphs 1, 2, 3 and 4 of the orders made on 26 October 2017 are discharged.
The mother’s previous solicitors, C Lawyers, are authorised to release to the Respondent her passport and that of the child.
Conditions
The father, Mr D, is to meet the cost of the mother and child's economy airfare to return to City E.
Subject to the mother applying for the relevant New Zealand Social Security Benefit or any other Benefit she is entitled to within 2 weeks of her return to New Zealand, the father is to pay to the mother the sum of $300 per week for 3 months from the date of her return or until she receives a benefit (whichever is the sooner).
Subject to the following paragraph, the father will find and meet the cost for accommodation for the mother and the child for a period of up to 3 months.
Condition 6 is subject to:
(a) the mother confirming, to the father, by 4 January 2018 that she requires accommodation for herself and the child, and
(b) the mother and child being the only residents occupying the accommodation.
The father shall meet half the child's pre-school fees until the child is eligible for Government subsidy at the age of 3 years.
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 & Smollett 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 6905 of 2017
| Secretary, Department of Family and Community Services |
Applicant
And
| Ms Smollett |
Respondent
REASONS FOR JUDGMENT
Introduction
By way of a Form 2 Application filed on 20 October 2017, the Secretary of the New South Wales Department of Family and Community Services, in his capacity as the State Central Authority (“the Central Authority”), has sought orders for the return of B born in 2015 (“the child”) to New Zealand. The orders are sought under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The Regulations implement the Convention on the Civil Aspects of International Child Abduction[1] (“the Hague Convention”) in Australia.
[1] Signed at the Hague on 25 October 1980.
The application is opposed by Ms Ms Smollett (“the mother”) who maintains that Mr D (“the father”) initially agreed to the child coming to Australia for a fixed period of time but subsequently acquiesced in the child remaining in Australia. Alternatively, the mother argues that to return the child to New Zealand would place the child in a situation where the child would face a grave risk of being exposed to physical or psychological harm or otherwise placed in an intolerable situation.
FACTUAL CONTENTIONS
The father’s factual contentions were set out in the Central Authority’s Form 2 Application filed on 20 October 2017 and, relevantly, were as follows:
·The child, B born in 2015 was born in New Zealand.
·The habitual residence of the child immediately prior to the retention of the child in Australia was New Zealand, a Convention country.
·The child has been wrongfully retained in Australia since on or about 1 September 2017.
·The father has rights of custody in respect of the child by reason of the following factual and legal circumstances:
·The father is the said child’s biological father. The father identifies as being a citizen of New Zealand, with habitual residence in New Zealand.
·The mother is the said child’s biological mother. The mother identifies as being a citizen of Australia, with habitual residence in New Zealand.
·The mother and father were in a de facto relationship from 2013 until mid-August 2017.
·The child was born in 2015 as a result of the union of the mother and father, in New Zealand.
·The cumulative effect of sections 15, 16, and 97 of the New Zealand Care of Children Act 2004 is that if a parent has rights of guardianship then he or she will have rights of custody pursuant to the Convention.
·The child was removed from New Zealand on or about 25 August 2017 in the following circumstances:
§ The mother is an Australian citizen, residing in New Zealand.
§ The father and the mother commenced a relationship in 2013 in Australia.
§ In November 2014, the mother and the father moved from Australia to New Zealand. The mother was approximately three months pregnant at the time.
§ The child was born in 2015 as a result of the union of the mother and the father in City E, New Zealand.
§ During the course of the relationship, the mother and the child returned to Australia on at least two occasions for holidays of up to two weeks. The father did not accompany them on these trips.
§ In early August 2017, the father asked the mother to move out of their home as he believed she had been unfaithful.
§ From the time when the mother moved out of the home in mid-August 2017 until the time that the mother travelled to Australia on 25 August 2017, the father had overnight care of the child on at least two occasions.
§ On 24 August 2017, the mother contacted the father to request that she be allowed to take the child to Australia to visit the child’s maternal grandmother, who was in hospital. The father initially declined to provide the child’s passport to the mother as he was concerned that she would not return to New Zealand.
§ The father initially suggested that the child could remain in New Zealand with him while the mother travelled to Australia however; the mother wanted the grandmother to be able to see her granddaughter.
§ The father attempted to make arrangements to file an urgent Application for a Parenting Order by consent in the Family Court of New Zealand, however was unable to do so.
§ The mother and the father signed a hand written note in which they agreed that the mother would travel with the child to Australia for no more than seven days.
§ On 25 August 2017, the mother and the child departed New Zealand for Australia.
§ On 30 August 2017, the mother indicated that she would like to stay in Australia until 8 September 2017. The father did not consent to this.
§ The mother told the father that she had booked return tickets to New Zealand with Virgin Airlines, arriving on 13 September 2017 at 12:40. The mother and the child did not return to New Zealand on 13 September 2017.
§ The father contacted the mother on numerous occasions requesting that she provide details of her return to New Zealand, however the mother did not provide any information on the return flight to the father.
§ The father did not consent to the child’s wrongful retention in Australia after 1 September 2017.
The mother’s factual contentions are set out her Form 2A filed on 28 November 2017 and, relevantly, were as follows:
·The father and the mother commenced a relationship in 2014 in Australia.
·The mother is a citizen of Australia.
·The father was resident in Australia for a period of approximately ten years prior to the commencement of the relationship.
·The relationship between the father and the mother was characterised by emotional and financial abuse exercised by the father towards the mother.
·The father and the mother relocated to New Zealand on 9 August 2014 and shortly thereafter the mother discovered she was pregnant.
·The mother agreed to relocate to New Zealand with the father on the basis she could return to Australia if she was unhappy in New Zealand.
·The child B was born in 2015 in City E.
·The father left the room prior to the child being born and was not present for her birth.
·The mother has been the primary carer of the child since her birth, attending to all of her needs with little assistance from the father.
·The mother was a stay at home mother following the birth of the child. The father worked 6 days a week and did not provide the mother with a means of transport or access to funds.
·The father has a large airsoft gun collection and on Sundays when he was not working would usually attend Airsoft, which is a mock military combat simulation style game, with his friends.
·The mother's mental health suffered following the birth of the child as she was isolated, in a foreign country and without any familial support. The father provided little assistance or support with respect to the parenting of the child or household duties.
·The father and the mother first separated in May 2016. The child and the mother slept in the lounge room from this time onward as the mother could not afford to rent a separate place to live.
·The mother obtained a job working nights, from 3:30 pm to 3:00 am. As the mother could not afford child care these were the most suitable hours as she was available to care for the child during the day.
·The mother would prepare dinner for the child and attend to her bathing and other needs prior to leaving for work.
·The mother would come home during her breaks from work and would often find the father intoxicated with a number of friends at the house, or playing playstation, leaving the child unsupervised.
·The mother frequently had to clean up after the father and his friends as they would attend the home at night while she worked and become intoxicated.
·On 26 May 2017 the mother arrived home at approximately 9:30 pm and found the father asleep on the lounge. The child was awake, in cold weather, with wet socks, no nappy and no pants on.
·In June 2017 the mother came home from work early and found the father intoxicated with friends. The child was unsupervised playing in a puddle of beer.
·At the end of July 2017 the mother left work early and came home. The father requested that the mother leave as he had another girl coming over whom he had met online. The mother and the child left and stayed with friends until the time the mother came to Australia with the child.
·Following the mother and the child leaving the home, the father has had minimal contact with the child.
·The mother has serious concerns for the welfare of the child in the care of the father.
·As the mother is not a citizen of New Zealand she is limited in the work she is able to obtain, which limits her earning capacity.
·The mother is not entitled to any social security benefits with respect to the costs of raising the child in New Zealand.
·The mother cannot afford child care in New Zealand and cannot afford to live in New Zealand.
·The mother's mental health deteriorated whilst in New Zealand as a result of her isolation and total lack of support from the father.
·The mother is and always has been the primary carer for the child and is the child's primary attachment figure.
·The mother has secured suitable housing, a part time job, specialist assistance for the child with respect to her development, a pre-school enrolment, has support from her extended family with respect to the care of the child and is willing to facilitate a meaningful relationship between the father and the child.
·To force the mother to return to New Zealand with the child would result in an intolerable situation for the mother and the child and is likely to result in psychological harm to both the mother and the child.
Evidence
The Central Authority relied upon the following:
a)Form 2 Application filed 20 October 2017;
b)Affidavit of Ms F sworn and filed 4 December 2017;
c)Case Outline document received 4 December 2017; and
d)Submissions in Reply received 15 December 2017.
The mother relied upon the following:
a)Form 2A Application filed 28 November 2017;
b)Cross Application dated 27 November 2017; and
c)Submissions received 11 December 2017.
No witnesses were required for cross-examination.
Proposed orders
The relevant orders sought by the Central Authority were relevantly as follows:[2]
[2] Form 2A filed by Central Authority on 20 October 2017.
That the Applicant and the Respondent, [Ms Smollett] born … 1993, make such arrangements as are necessary to ensure the return of the said child, [B] born … 2015, forthwith in the company of such person and upon such conditions as this Court deems necessary pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.
…
That the Respondent, [Ms Smollett] born … 1993, pays for the costs for the return of the child including airfares and any other necessary travel expenses to New Zealand and in the event that the Respondent returns to New Zealand in the company of the said children, the Respondent pays the costs of her own airfare.
…
Such further or other orders and relief or direction as the Court deems necessary.
The mother sought the following orders:[3]
[3] Mother’s Cross Application dated 27 November 2017.
That the Mother and the child be permitted to remain in Australia.
Such further or other orders as this honourable Court deems appropriate.
On 5 December 2017, orders were also made providing for the parties to provide written submissions to Chambers as to what conditions they contend should be imposed in the event the Court orders the child to return to New Zealand. The submissions of the mother were received on 11 December 2017 and the submissions of the Central Authority were received on 15 December 2017.
The Law
Legislation: Overview
Section 111B(1) of the Family Law Act1975 (Cth) (“the Act”) relevantly provides that:
(1) The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention) but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia.
Regulation 1A of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) provide that the Regulations are intended to be construed:
(a) having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and
(b) recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence; and
(c) recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.
Article 1 of the Hague Convention provides that its objects include “to secure the prompt return of child wrongfully removed to or retained in any Contracting State”.
Regulation 2(2) provides that “[t]he removal or retention of a child is wrongful in the circumstances mentioned in Article 3 of the Convention”. Article 3 of the Convention provides:
The removal or retention of a child is to be considered wrongful where –
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Regulation 16 provides that where a child has been wrongfully removed or retained and proceedings are commenced within one year after that child’s removal or retention, the Court “must”, subject to specified exceptions set out in regulation 16(3), order the return of the child forthwith.
Regulation 16(1A) provides that a child's removal to, or retention in, Australia is wrongful if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
Regulation 16(3) sets out the exceptions to the mandatory obligation to order the return of a child as being where the “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.
In these proceedings it is argued by the mother that:
(i)the father consented to the child being retained in Australia as contemplated by regulation 16(3)(a)(ii);
(ii)there is a grave risk that the return of the child would otherwise place the child in an intolerable situation as contemplated by regulation 16(3)(b); and
Regulation 16(5) provides that, even if the party opposing return establishes a ground set out in regulation 16(3), the Court nonetheless may exercise its discretion as to whether or not it should make an order for the return of the child.
Issues
Accordingly, the issues to be determined in these proceedings are as follows:
·Where was the child habitually resident immediately before the child was allegedly wrongfully retained in Australia?
·Did the father have rights of custody in respect to the child?
·If it is determined that the child was habitually resident in New Zealand, was the child wrongfully retained in Australia?
·If it is determined that the child was wrongfully retained in Australia, did the father consent to or acquiesce in the child being retained in Australia?
·Would the return of the child place the child in a situation where the child would face a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation?
·If one or more of the exceptions set out in regulation 16(3) are established, should the Court nonetheless exercise its discretion to order that the child be returned to New Zealand?
Consideration: Habitual Residence
Approach
As noted, regulation 16(1A) sets out several jurisdictional pre-conditions to a finding that a child has been wrongfully removed to, or retained in, Australia for the purposes of the Regulations. Relevant to these proceedings is the question as to whether, immediately before the alleged wrongful retention, the child was habitually resident in New Zealand.
The concept of habitual residence is pivotal to the operation of the Regulations. In that context, regulation 1A(2)(b) provides that the Regulations are intended to be construed as:
recognising, in accordance with the [Hague] Convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence.
In Re B (A Child) (Reunite International Child Abduction Centre and others intervening),[4] Lord Wilson (with whom Baroness Hale of Richmond DPSC and Lord Toulson JSC agreed) said:
A child’s habitual residence in a state is the internationally recognised threshold to the vesting in the courts of that state of jurisdiction to determine issues in relation to him (or her).
[4] [2016] AC 606 at [27].
His Lordship further added:
A child’s habitual residence is also the thread which unites the provisions of [the Hague Convention]. This Convention applies to a child habitually resident in a contracting state immediately before his wrongful removal or retention: article 4. It is the law of that state which dictates whether his removal or retention was wrongful: article 3(a). It is that state to which, subject to exceptions, other contracting states must order the child to be returned: article 12.
In these proceedings, the proposition that the child was wrongfully retained in Australia is predicated on the child being habitually resident in New Zealand immediately before the date of the alleged wrongful retention.
In LK v Director-General, Department of Community Services (“LK”),[5] the High Court noted that “it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence”. Nevertheless, the High Court recognised that determining whether such a shared intention exists will not always be a clear and precise exercise. In that context the High Court said that:
[I]f 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.
[5] (2009) 237 CLR 582 at 596 [34].
In this matter, there is no ambiguity in respect to the intention of the parties. The parties intention was confirmed in the handwritten agreement that they signed on 24 August 2017[6] which read as follows:
[Ms Smollett] intends on taking [the child] to Australia to the NSW/ACT States. [Mr D] has agreed on the Terms that [the child] is not in Australia for more than 7 days at a time. If … [Mr D] is also to have daily contact with [Ms Smollett] and [the child] during the time/s overseas. Failure to adhere to these Terms will result in the Hague convention to be instigated. This agreement can only be challenged whilst all partys (sic) involved are in New Zealand.
Signed in good faith by [Mr D] and [Ms Smollett]
once signed becomes a legal binding document
[6] Annexure C Form 2A filed 20 October 2017.
However, establishing the intention of the parties is not the end of the inquiry. In LK (supra) at 594[28], the High Court said that “intention is not to be given controlling weight” in deciding habitual residence. As noted, the Full Court in Secretary, Department of Family and Community Services & Padwa (“Padwa”),[7] consistent with LK, found that the trial judge fell into error in having “predominated” parental intention over other more pertinent considerations.
[7](2016) FLC 93-701.
It is significant that the period that the child was in Australia before the alleged wrongful retention was a period of just one week. In Zotkiewicz & Commissioner of Police (No.2) (“Zotkiewicz”)[8] the Full Court said:
We also do not discern from anything said in LK that there has been any departure in Australia from the proposition that in order to find someone is habitually resident in a place they must generally have lived there for an “appreciable period”.
[8] (2011) FLC 93-472 at 85,765 [74].
In Zotkiewicz, the Full Court stated, however, that “[w]hat amounts to an ‘appreciable period’ will differ from case to case”. [9] In that respect, the decision of Butler-Sloss LJ in Re F (A Minor) (Child Abduction) (1992) 1 FLR 548 at 555 was noted by the Full Court where his Lordship said:
The judge was entitled to make the finding that the family did intend to emigrate from the UK and settle in Australia. With that settled intention, a month can be, as I believe it to be in this case, an appreciable period of time.[10]
[9] Ibid.
[10] Ibid at [82].
It is also of note that, in Padwa,[11] the Full Court held that the period of time that a child spent in a country was “not determinative” of whether the child had become habitually resident in that country.
[11] (2016) FLC 93-701 at 81,315 [57].
In summary, the intention of the parties and the length of time that the child is in the destination country are relevant considerations but not determinative of whether there has been a change in habitual residence. In LK at 599[44], the High Court cited, with approval, statements made by the New Zealand Court of Appeal in Punter v Secretary for Justice[12] (“Punter”), that “a broad factual inquiry” was required to determine whether there had been a change in a child’s place of habitual residence. The High Court approved the analysis in Punter[13] that:
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 [[2005] 3 NZLR 590] held that settled purpose (and with young child the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called at [22], the underlying reality of the connection between the child and the particular state.
[12] [2007] 1 NZLR 40.
[13] Ibid at 61-62[88].
The difficulty for the mother in this matter is that she has not provided evidence as to the current circumstances of the child and the extent to which, as at the date of the alleged wrongful retention, the child had assimilated into life in Australia and specifically, to assist the Court to determine the “underlying reality of the connection between the child and [Australia]”.[14] In those circumstances, having regard to the fact that the child was born in New Zealand and had spent virtually the entirety of her life in New Zealand, the intention of the parties and the period of just one week that the child was in Australia before the date of the alleged wrongful detention, I am satisfied that as at 1 September 2017, the child was habitually resident in New Zealand.
[14] Ibid at 62-63 [88].
Consideration: rights of custody
Sections 15, 16, and 97 of the Care of Children Act 2004 (NZ) relevantly provide as follows:
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.
…
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.
…
97. Rights of custody defined
For the purposes of this subpart, rights of custody, in relation to a child, include the following rights attributed to a person, institution, or other body, either jointly or alone, under the law of the Contracting State in which the child was habitually resident immediately before the child’s removal or retention:
(a) rights relating to the care of the person of the child (for example, the role of providing day-to-day care for the child); and
(b) in particular, the right to determine the child’s place of residence.
In this matter I am satisfied as to the following:
·The father is the child’s biological father. The father identifies as being a citizen of New Zealand, with his habitual residence in New Zealand.
·The mother and father were in a de facto relationship from 2013 until mid-August 2017.
·The child was born in 2015 as a result of the union of the mother and father, in New Zealand.
·At the time of the child’s birth, both the mother and the father were habitually resident in New Zealand.
As a result of being satisfied in respect to those factual matters, pursuant to sections 15, 16, and 97 of the Care of Children Act 2004(NZ), the father has rights of guardianship in respect to the child and, accordingly, the father has rights of custody pursuant to the Hague Convention.
Consideration: Wrongful Retention
It is quite clear that retaining a child in a foreign country beyond the date consented to by a parent or party with rights of custody in respect to that child becomes a situation of wrongful retention on the day after the agreed date of return.[15]
[15]Director-General, Department of Families & BW (2003) FLC 93-150 at 78,490-1.
To succeed in establishing that a child has been wrongfully retained within Australia, as contemplated by Article 3 of the Hague Convention, the Central Authority must prove an event occurring on the specific occasion that constitutes the act of wrongful retention. In that respect, in Re S(A minor) (Custody: Habitual Residence) [1998] AC 750 Lord Slynn said:
It must, however, be necessary to point specifically to the event which constitutes the removal or the retention. This is necessarily so because of the provision of article 12 that for an order for the return of the child to be made at the date of commencement of the proceedings a period of less than one year must have elapsed "from the date" of the wrongful removal or retention.
In these proceedings there is no question that the child lawfully travelled to Australia and was lawfully present in Australia up until the point where the father alleges that the child was wrongfully retained in Australia. The Central Authority bears the onus of establishing that a period of time expired, or an event occurred, that resulted in a wrongful retention.
This burden of proof necessarily requires the Central Authority to provide evidence as to what period of time the father had agreed for the child to remain in Australia with the mother.
In these proceedings, the father asserted that the wrongful retention occurred after the child had been in Australia for more than the seven days that the parties had agreed to in the handwritten agreement that the parties signed on 24 August 2017.
The evidence of the father that the handwritten agreement was prepared because the parties had insufficient time to file Consent Orders in Court was not challenged.
It was not contended by the mother that she signed the agreement as a result of duress, unconscionable conduct or any other vitiating factor.
As previously noted, I am satisfied that, as at 1 September 2017, the father has “the right to determine the child’s place of residence” in accordance with section 97 of the Care of Child Act 2004 (NZ) which defines the Rights of Custody for the purposes of that Act.
In those circumstances, I am satisfied that father agreed to the child remaining in Australia for a period of only one week and the child has been wrongfully retained in Australia since 1 September 2017.
Consideration: Defences
As referred to above, regulation 16(3) sets out several exceptions to the obligation on the Court to make an order for the return of the child.
Consent
The mother contends that, even if it was to be found that the child was wrongfully retained in Australia, the father consented to that occurring in terms contemplated by regulation 16(3)(a)(ii).
In order to establish the defence of consent, the mother must establish that the father consented to the child being retained in Australia.
In Wenceslas v Director General, Department of Community Services (2007) FLC 93-321 (“Wenceslas”) at 81,559 [262], the Full Court referred to the views of Hale J in Re K (Abduction: Consent) [1997] 2 FLR 212 at 217-8:
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.
The Full Court in Wenceslas (supra) further said at 81,560:[16]
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 child. As present 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.
[16] at [264].
The evidence that the mother relies upon to establish consent is set out at paragraph 46 of her affidavit filed on 28 November 2017 as follows:
Approximately 10 days later, on 3 October 2017, during a telephone call, [Mr D] and I agreed that I would remain in Australia on the condition that I facilitate him Skype calling [the child] 3 to 4 days per week. We then arranged that I would facilitate Skype between him and the child on Mondays, Wednesdays and Saturdays at 5.00 pm AEST.
Annexure “B” to the mother’s affidavit sets out an exchange of Facebook messages as follows:
Father:
Nothing about you and I matters all that matters is our little girl please give me three – four days and times each week that I can see the child and we will work it from there.
Mother:
Monday Wednesday Saturday what times work for u.
Father:
1900 all three days?
Mother:
Your time or mine?
Father:
Mine so 1700 your time
Mother:
Done deal
Father:
Fantastic I will see you and my baby at 1900 tomorrow give her…
The evidence set out in paragraph 46 of the mother’s affidavit is a statement of a conclusion by her that there was an agreement between her and the father that she remain in Australia with the child. There is no evidence in the form of primary facts that justifies that conclusion. Specifically, there is no account of words used in the telephone conversation or even the effect of any such words.
Annexure “B” to the mother’s affidavit is at best equivocal. The fact that the father was attempting to reach agreement in respect to contact he would have with the child does not lead to the inference that he consented to the child remaining in Australia.
In Beaumaris Football Club v Hart & Ors and Bayside City Council v Hart & Ors,[17] the Supreme Court of Victoria Court of Appeal said:
The principles relating to the drawing of inferences in a civil case are well established. They were recently summarised by this Court in Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd in terms which are sufficient for the purposes of this case, namely:
The principles, relating to the drawing of inferences in civil cases, are well established. First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be ‘the more probable inference’ from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference. Fourthly, in determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by the evidence, in isolation. Rather, the Court considers the totality of those facts together, giving effect to their united and combined force. (citations omitted)
[17][2017] VSCA 226 (Osborn, Beach and Kaye JJA) at [93].
In this case, an equally plausible explanation to that advanced by the mother is that the father was seeking to put in place arrangements for him to have contact with the child pending proceedings with an application to secure the child’s return to New Zealand.
Accordingly, the mother has failed to discharge the onus, which she carries, to establish that the father consented to the child being retained in Australia.
Grave risk of harm or otherwise intolerable situation
Regulation 16(3)(b) provides that an exception to the obligation on the Court to order the return of child found to have been wrongfully retained includes where:
…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.
In DP v Commonwealth Central Authority (2001) 206 CLR 401 (“DP”), Gleeson CJ said at 408[9]:
What is made clear, for reasons that are explicable by reference to the nature and purpose of the regulatory scheme, and the Convention to which it gives effect, is that the discretion not to make an order for return only exists where there is a grave risk of harm (the gravity being emphasised by the cognate reference to an intolerable situation), and the onus of establishing that circumstance is upon the person opposing return. (emphasis added)
In a similar context at 442[132], Kirby J said:
The adoption of the word “grave” to qualify “risk” plainly contemplates that in some cases, an order of return will be made although there is a real, even significant (but not “grave”) risk of the kinds of harm contemplated. Similarly, the use of the word “otherwise” in reg 16(3)(b) indicates that the types of “physical or psychological harm” referred to must also be such as to place the child concerned in an “intolerable situation”. (emphasis added)
After referring to the above passages from DP, in Re S (A Child) (Abduction: Custody Rights) [2002] EWCA Civ 908, the UK Court of Appeal concluded:
41. There seems to us, therefore, to be considerable international support for the view that there is a link between the limbs of article 13(b). In our judgment, the proper approach for the court considering a defence alleging a grave risk of exposure to physical or psychological harm should be to consider the grave risk of that harm as a discrete question but then stand back and test the conclusion by looking at the article in the round, reflecting on whether the risk of harm is established to an extent which would lead one to say that the child will be placed in an intolerable situation if returned.
In that respect, applying DP, the task of considering whether a regulation 16(3) exception has been established, requires the Court to have regard to the following:
·As is made clear by the text of the Regulation, which reflects the text of the Child Abduction Convention, the onus of proof in establishing a regulation 16(3)(b) exception “lies on the party opposing return”.[18]
·The assessment as to whether there is a “grave risk” as contemplated by regulation 16(3)(b) “requires some prediction, based on the evidence of what may happen if the child is returned”.[19]
·In making that prediction, “certainty is not required”. Rather, “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”.[20]
·However, the Court will not be persuaded to make a prediction of relevant risk without some “clear and compelling evidence”.[21]
·If a risk is found to exist it is then necessary to determine whether it is of a nature “which warrants the qualitative description ‘grave’.[22]
[18] at [39].
[19] Ibid at [41].
[20] Ibid at [42].
[21] Ibid at [43].
[22] Ibid at [42].
In this matter, the mother alleged that the child would be at grave risk of both psychological and physical harm if ordered to return to New Zealand. The mother stated that the child’s routine would be disrupted and furthermore that the child would be at risk of neglect and be unsafe in the father’s care.
In that respect the mother referred to the fact that the baby had succumbed to ‘nappy rash’ when she was in the father’s care.
The mother also contended that the child contracted “foot and mouth disease” as result of coming into contact with the father’s work clothes which she asserted had been left on the floor.
The mother also submitted that an order compelling the child to be returned to New Zealand would compel her as a child’s primary carer to similarly return. Such an order, she contended, would have a detrimental psychological effect on her. In that respect the mother referred to the report of her treating psychologist, Ms G, dated 15 November 2017[23] where Ms G states:
In my professional opinion, I believe the benefits for [Ms Smollett] and [the child] remaining in their home in Australia are varied. The social, economic and emotional support provided here by both her family, social connections and established health professionals are invaluable and conducive to a healthy, meaningful and productive life. Should she be forced to return to New Zealand under a court order I would be concerned for her and her daughter’s well-being and mental health as they would be deprived of these established support systems. In my interactions with Jess she has presented as a competent, caring and responsible mother and I support her application to remain in Australia.
[23] Annexure D of the Affidavit of the Mother filed 28 November 2017.
In expanding upon the impact of a possible return order on her, and the child the mother stated as follows:
Well, for starters, we don’t have anywhere to live over there and I’m her primary carer. And also I don’t – I’ve never had much trust for [Mr D], since coming home and finding my daughter in a puddle of beer with him unable to respond except look at me and tell me that he would clean it up later and that she was fine. I just feel like she’s in routine here. To mess up her routine would be psychological harm for her to go back to where she had nothing – to take her from loving family to someone that’s very inconsistent with caring for her. Also, I don’t have any family support over there. It would do me psychological harm. It would definitely cause depression and some form of mental illness. And if I’m not at my best, then I can’t be my best with my child and I am her primary carer.
I just – I just don’t see a point in going back for him to see her once a week, for us to go through such a struggle to find a home and things to fill our home, and to re-put her into another preschool where she has already met the children at the preschool which she would be attending here in Australia. To take her out of her routine would completely mess with her and myself. Establishing a routine is a new thing for the child, and she is doing really, really well, where she never used to be when she was exposed to that kind of tension and arguments and being left with someone that would only care for her when he felt like it or to show off to his friends five minutes 40 during the three hours that he had her.
…
I’ve also come home numerous times and [the child] had been left in a nappy so long that she had nappy rash – bad nappy rash, which caused fungal infections which took a lot of time and care to get rid of. It’s a normal thing to change a baby’s nappy. It takes two minutes. And I just think it’s silly. To be left out in cold weather with wet socks on is also ridiculous. Playing in puddles of water in the bathroom because no one is watching her – anything could have happened. It only takes a puddle of water for a child to drown. I just don’t think it’s fit for her to be over there.
…
[Mr D] also works in [an unhygienic environment]. He’s not a very clean person, so when coming home, he would just leave his clothes or his boots on the floor for the child to touch. She did pick up hand, foot and mouth disease from touching his clothes, which I had constantly asked him to pick up or put straight into the washing machine. The washing machine was left empty for him to put his clothes in straightaway. It’s small things like this that you need to be aware of when having a child that he’s just not, and it doesn’t make a safe place for her.[24]
[24] Transcript of proceedings dated 5 December 2017 at pages 18 – 19.
Those matters, if established, may well be highly relevant to the Court’s consideration of any application that may be made by the mother for an order permitting her to relocate to Australia. However, I respectfully agree with Counsel for the Central Authority that the evidence does not establish the grave risk defence.
While the mother contended that the child has been the subject of poor and neglectful treatment in the father’s care, even if the mother’s evidence is taken at its highest, it does not establish that there is a grave risk of the child being exposed to physical or psychological harm should the child return to New Zealand.
In terms of the mother’s mental health, the first task is to consider whether there is “clear and cogent evidence” to satisfy the Court “that there is a grave risk that the mother's psychological and emotional state is such that she will not be able to cope”[25] with an order requiring the child to be returned in circumstances where, appropriately, she intends to accompany the child.
[25] State Central Authority & Abdalle [2012] FamCA 1151 at [91].
Having regard to those matters, it is then necessary to determine whether the child would be exposed to a risk as a result of the impact of the return on his mother and whether that risk “warrants the qualitative description ‘grave’”.[26]
[26] DP v Commonwealth Central Authority (2001) 206 CLR 401 at [42].
In DP, the High Court acknowledged that:
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 article 13(B) of the convention in turn 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.[27]
[27] (2001) 206 CLR 401 at [45].
Equally, while I can sympathise with the mother regarding her concerns about the prospect of being compelled to return to New Zealand with the child, the evidence does not satisfy me that the impact upon her would present a grave risk of either physical or psychological harm to the child or otherwise place the child in an intolerable situation.
In that respect, even if the evidence of Ms G is taken at its highest, the evidence amounts to an expression of concern for the mother and the daughter’s “well-being and mental health” as they would be deprived of the established “support systems” to which she referred in her report.
There is no evidence, however as to the extent of that impact on either the mother or the child and, specifically, what effect it may have on the mother’s parenting capacity and, in turn, whether such an impact would present a grave risk to the child in terms of regulation 16(3).
Again, these considerations may ultimately be highly relevant to the Court in terms of what orders would be in the best interests of the child. However, these considerations do not, for the purpose of these proceedings, establish the defence set out in regulation 16(3)(b).
Exercise of discretion
As I have found that the mother has not made out the defences of consent or grave risk of harm, I am obliged to make an order for the return of the child.
Conditions
The mother provided list of the items that she contended should be included in conditions for her to return with the child to New Zealand. Those items were as follows:[28]
[28] Submissions received 11 December 2017.
1. Flights for the child and myself.
2. A sum of at least $350 a week
3. Accommodation for [the child] and I only. With all visits from anyone being arranged with me in advance
4. Money to pay for [the child] and my furniture to be shipped that includes our beds, draws, lounge suit etc this must be arranged and paid for before [the child] and I leave the country
5. Funding for any activities [the child] takes part in such as kinder gym or pre school
6. A means of transport that can not be controlled by another
7. Funding for [the child] and myself to seek professional help such as a counsellor for re adjusting routines and of lack of family support
8. Funding for any medical bills that [the child] may need
9. A fair amount of time to sort out breaking of lease. And to get funds together to be able to afford to leave, To sort out transportation for our things so as we are not with out our own furniture and bedding. Also to finish up with my work place. And to say our fairwells to our family (sic). I am happy to keep contact with the other party during this time this includes arranged skyping and messages that can be monitored if needed. ( I think it's fair to have this time with family and to sort out our commitments even if this goes over the Christmas period as [Mr D] is working over Christmas and the child will be in the same country as [Mr D] and his family for a long period of time including special occasions which will be able to spend with [Mr D] and his family and unfortunately unable to spend with my family. As this matter can drag out for a long period of time I think it is important for the child and myself to be able to have this time with our loved ones as my mother is ill and unable to travel it is only fair we do get a chance for a farewell as when we are in New Zealand it is un clear when we will be able to return if only for a short visit.)
10. Funding for Bills, utilities, electricity and internet so as I can continue my studies
11. Help funding with and clothes, shoes, sports equipment or schools things the child may need
The father responded to the mother’s proposed conditions by indicating that he agreed to the following:
1.1 To meet mother and child's economy airfare to return to [City E].
1.2 To pay to [Ms Smollett] the sum of $300 per week for 3 months or until she receives a benefit (whichever is the sooner). At that point, [Mr D] will be paying child support. That payment is on the stipulation that the mother must apply for the New Zealand Social Security Benefit or any other Benefit she is entitled to within 2 weeks of her return to New Zealand.
1.3 [Mr D's] Landlord has withdrawn his consent to [Ms Smollett] residing in his property. [Mr D] will find alternative accommodation for [Ms Smollett] and [the child]. He is agreeable to meeting those costs for up to 3 months. He will pay those costs on the basis that it is only [Ms Smollett] and [the child] who reside in the property and that [Ms Smollett's] partner, [Mr H] is not to reside in the property. This offer is on the basis that [Ms Smollett] confirms to [Mr D] by 4 January 2018 that she does require accommodation to be provided by [Mr D]. [Mr D] can also continue to provide accommodation for the child
1.4 [Mr D] does not agree to meet the costs for furniture, beds etc to be transported to New Zealand.
1.5 [Mr D] agrees to meet half the child's pre-school fees until the child is eligible for Government subsidy at the age of 3 years.
1.6 [Mr D] does not agree to provide transport costs to [Ms Smollett].
1.7 [Mr D] does not agree to meet counselling costs. However, we comment that there are free counselling services in [City E] through agencies such as Methodist Mission, Presbyterian Support etc should [Ms Smollett] wish to avail herself of those services.
1.8 [Mr D] does not agree to meet medical bills for [the child]. However, we comment that Doctor visits for children under 6 years are free in New Zealand.
1.9 [Mr D] requires the child to be returned to New Zealand by 20 January 2018.
1.10 [Mr D] does not agree to meet the cost of utilities, electricity etc.
1.11 [Mr D] will not pay for clothing. However, [Mr D] will purchase clothing for [the child] at his discretion.
In Arthur & Secretary, Department Of Family & Community Services And Anor (“Arthur”),[29] the Full Court noted:
The Convention does not mention conditions being imposed on return orders, however, at least in common law countries, the use of conditions (or the acceptance of undertakings as a condition of return) is well accepted.[30] In Australia, the power is conferred by reg 15(1) which provides:
(1) If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:
(a) make an order of a kind mentioned in that regulation; and
(b) make any other order that the court considers to be appropriate to give effect to the Convention; and
(c) include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.
[29] [2017] FamCAFC 111 at [69].
[30] See Garbolino, James D, The Use of Undertakings in Cases Arising Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, Federal Judicial Center, March 2016.
In De L v Director General, NSW Department Of Community Services and Anor (“De L”),[31] the High Court stated:
It should also be noted that, in its present form, the effect of reg 15(1) 48. is to provide that, in making an order in relation to the return of a child from Australia, the Court may include in its order a condition the Court considers appropriate to give effect to the Convention(41).
In delivering the leading judgment in the Supreme Court of Canada in Thomson v Thomson[42], La Forest J said:
"Given the preamble's statement that 'the interests of children are of paramount importance', courts of other jurisdictions have deemed themselves entitled to require undertakings of the requesting party provided that such undertakings are made within the spirit of the Convention: see Re L ((Child Abduction) (Psychological Harm))(43); C v C ((Minor: Abduction: Rights of Custody Abroad))(44); P v P (Minors) (Child Abduction)(45); and Re A (A Minor) (Abduction) (46). Through the use of undertakings, the requirement in Article 12 of the Convention that 'the authority concerned shall order the return of the child forthwith' can be complied with, the wrongful actions of the removing party are not condoned, the long-term best interests of the child are left for a determination by the court of the child's habitual residence, and any short-term harm to the child is ameliorated."
Both the Supreme Court of Canada and the English Court of Appeal in C v C (Minor: Abduction: Rights of Custody Abroad)(47) were concerned with Convention applications raising an issue as to whether the return of the child would expose the child to grave risk of psychological harm. In the latter decision, undertakings were given to the Court of Appeal by the father seeking return of the child to Australia. Butler-Sloss LJ said(48):
"These undertakings are crucial to the welfare of the child, who has been sufficiently disrupted in his removal from his home and his country and needs as a priority an easy and secure return home. The mother has been the primary caretaker throughout his short life, and since the parting of the parents when he was three for all but access periods his sole caretaker. If possible, she should for his sake and not for hers be with him and help him to readjust to his return. The father should not be instrumental in putting obstacles in the way of that easy return, or make difficulties once the child is back. It is essential that the judge hearing the future issues of custody and access or indeed the Australian Family Court should have the opportunity to consider the welfare of the child as paramount without emergency applications relating to the manner of the return of the child."
It is impossible to identify any specific and detailed criteria which govern the exercise of the power whereby the Court may impose such conditions on the removal of the child "as the court considers to be appropriate to give effect to the Convention". Many of the criteria which may be applicable in a particular case are illustrated in the above passages from the Canadian and English decisions. The basic proposition is that, like other discretionary powers given in such terms, the Court has to exercise discretion judicially, having regard to the subject-matter, scope and purpose of the Regulations (49).
[31] (1996) 187 CLR 640 at [47] - [48].
While it is not possible “to identify any specific and detailed criteria” to apply in imposing any conditions to the child’s return. As the Full Court stated in Arthur:[32]
Whatever may be the position where a defence has been successfully raised, we do not consider it proper, when making a mandatory return order, to impose conditions that cannot be met. The discretion to impose conditions has to be exercised having regard to the purpose of the Regulations. As this Court said in Wolford & Attorney-General’s Department (Cth) [2014] FamCAFC 197:
75. We should observe that unlike McDonald [& Director-General, Department of Community Services NSW (2006) FLC 93-297] or DP v Commonwealth Central Authority, this is not a case where a grave risk of harm was otherwise established. It follows that in making it easier for children in their place of habitual residence, undertakings or conditions should not be imposed which are unnecessary or, rather than give effect to the Abduction Convention, undermine it.
As Butler-Sloss LJ has said, conditions also must not be used “to try to clog or fetter, or, in particular, to delay the enforcement of a paramount decision to return the child”. Similarly, the High Court has said that conditions must be such that they “will be met voluntarily or … can readily be enforced”.
We consider that his Honour erred in failing to recognise that the conditions would result in the child not being returned to the country from which she was wrongfully removed, and that they therefore did not satisfy the requirement that they be “appropriate to give effect to the Convention”. On the contrary, the conditions were antithetical to the objective of the Convention as they placed the mother in a better position than she would have enjoyed had she not wrongfully removed the child.
[32] [2017] FamCAFC 111 at [92 - 94].
Having regard to the principles adumbrated in Arthur and also in De L, I am of the view that the measures proposed by the father are reasonable and appropriate.
Conclusion and Orders
For all the reasons set out above, subject to the father complying with the conditions, to which he has agreed, with a view to assisting the mother to return to New Zealand and to provide for the child, I make the order for the return of the child as proposed by the Central Authority.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 21 December 2017.
Associate:
Date: 21 December 2017.
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