Secretary, Department of Family and Community Services and Walkenhorst

[2018] FamCA 47

FAMILY COURT OF AUSTRALIA

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & WALKENHORST [2018] FamCA 47

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 children – Where the Court finds that the children were not habitually resident in New Zealand – Where the Court finds that the father consented to the children relocating – Where the Court makes findings in respect of the father’s credit – Where the Central Authority failed to establish an event constituting wrongful retention – Application dismissed.

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 art. 1, 3

Director-General, Department of Families & BW (2003) FLC 93-150
H v H (Abduction: Acquiescence) [1996] 2 FLR 570
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 212Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171
Re S (A Minor) (Custody: Habitual Residence) [1998] AC 750
Regino & Regino (1995) FLC 92-587
Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701
Secretary, Department of Family & Community Services & Prim [2015] FamCA 16
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) 
Wenceslas & Director-General, Department of Community Services (2007) FLC 93-321
Whalan v Kogarah Municipal Council [2007] NSWCA 5
Zotkiewicz & Commissioner of Police (No. 2) (2011) FLC 93-472

APPLICANT: Secretary, Department of Family and Community Services

RESPONDENT: Ms Walkenhorst

FILE NUMBER: SYC 6244 of 2017

DATE DELIVERED: 6 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 11 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Barnett

SOLICITOR FOR THE APPLICANT: Department of Family and Community Services

COUNSEL FOR THE RESPONDENT:                  Mr McGorey

SOLICITOR FOR THE RESPONDENT:              Legal Aid New South Wales

Orders

THE COURT ORDERS THAT:

1. That the Application of the Central Authority filed 21 September 2017 be dismissed.

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 & Walkenhorst 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 6244 of 2017

Secretary, Department of Family and Community Services 

Applicant

And

Ms Walkenhorst

Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of a Form 2 Application filed on 21 September 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 2011 and C born in 2014 (“the children”) 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.

2. The application is opposed by Ms Walkenhorst (“the mother”) who maintains that Mr Mercer (“the father”) agreed to the children travelling to and living with the mother in Australia on a permanent basis.

background

1. The father was born in Sydney Australia in 1976. The mother was born in Suburb P, Sydney Australia in 1989.

2. The mother commenced a relationship with Mr H Mercer in about June 2007. The mother was in the relationship with Mr H Mercer (“Mr H”) until approximately May or June 2010. As will subsequently be discussed, the mother has now resumed that relationship with Mr H. During the period the mother was in a relationship with Mr H, the mother had two children to him, D, who was born in 2008 and E who was born in 2009. D and E were removed from the mother’s care by the Department of Family and Community Services in October 2010.

3. After separating from Mr H, the mother commenced a relationship with Mr Mercer in October 2010. The father is related to Mr H however that fact is not relevant to this decision.

4. Shortly after commencing her relationship with the father in October 2010, the mother fell pregnant with her third child, B. 

5. In June or July 2011 orders were made in the Children’s Court placing D and E in foster care.

6. The father moved to New Zealand in June or July 2011 and the mother followed shortly thereafter. In 2011 B was born in City F.

7. On 6 July 2014 the mother’s youngest child C was born in Town T New Zealand.

8. On 29 September 2016, the mother phoned D for his 8^th birthday. The mother says that after that phone call, she and the father talked about moving back to Australia. The father acknowledges there was a discussion about the mother returning to Australia but asserts the discussion concerned the mother returning for a holiday only.

9. The mother asserts that in early October 2016, the father told her he had the money together and that she should start organising passports.

10. Between October and December 2016 the mother commenced selling and giving away her possessions including her car to her friend, Ms N.

11. On 15 November 2016 the father provided funds of $1,150 to the mother. The mother states that this was to pay for a one way ticket for herself and the children to travel to Australia as well as to pay for an extra baggage allowance. On that day, the mother transferred $801 into the joint account held in her own and the father’s names in order to pay for the tickets. The mother states that the $93 in extra fees shown on the invoice for the tickets was additional luggage allowance.

12. The mother states that, shortly after she purchased the airline tickets, in mid-November 2016, the parties separated, but remained living under the one roof until early December 2016. The mother states that the father told her that he would return to Australia after her and the children had arrived in Australia and that he intended to live in Town L in the north coast of New South Wales.

13. The mother states that, in late November 2016, the father offered her cash of approximately $1000 to assist her in Australia. That money was not, however, given to the mother.

14. In early December 2016 the mother visited another family friend, Ms Y, and gave her C’s car seat.

15. Around this time, the parties physically separated, however the exact date of the physical separation is unclear. The father asserts that the parties separated on approximately 1 December 2016. The mother asserts she and the children moved out of the property the parties were renting, to stay with her friend Ms N, on 7 December 2016. For the purpose of this judgment, I have accepted the later date as being the date that the parties physically separated.

16. During the following week, the mother and the father were in contact and the children stayed overnight on one occasion with the father.

17. The father contends that, on 13 December 2016, he handed the mother a hand-written letter which read as follows:

    I am ok with you taking the kids on holiday to Australia till the end of January, when you must return. If you choose not to return, the situation will be taken to the family court to get proceedings to have the kids returned.

    When you return at the end of January, we will sort out the arrangements for the kids school etc.

18. The mother denies receiving that letter.

19. On 14 December 2016, while the mother and children were at the airport waiting to depart New Zealand, she and the father exchanged text messages. In one of those messages the father stated:

    I’m leaving [City F] ASAP and will be based in [Town X] or [Town M].

20. The mother states that on 15 December 2016 she received the following text message from the father:

    Not sending a message that you arrived safely, is not just vindictive, it is also endangering the kid’s safety! Just like the last week you chose to stay with people who use needles every day! I was happy with u selling all our stuff TVs etc but I told u I would give u $ for a car if u left me our runabout. U chose to screw me over rather than helping yourself? I had 1000aus here to give you. [2]

21. Between December 2016 and May 2017 the mother lived with the children in her parent’s home in Sydney.

22. In January 2017 the mother spoke to Centrelink in Australia about claiming a family tax benefit in respect to the children. The mother was advised that Centrelink needed to speak with the father before approving the application.

23. During January 2017, the mother phoned the father to advise him of the Centrelink application and that a Centrelink officer would contact him.

24. The father contends that the children have been wrongfully retained in Australia since 31 January 2017.

25. The mother asserts that on 1 February 2017,  she received an email from Mr O, the father’s brother, which stated the following:

    [Mr Mercer] agrees to talk to Centrelink and confirm that [Ms Walkenhorst] has travelled to Australia to live with her parents having shared custody of [C] and [B]. [Mr Mercer] will also advise that there is no current court case pending for the custody for the children. In return for [Mr Mercer] talking to CantreLink and confirming that there is no custody issues, Belinda Waltisbuhl agrees to the following:

    ·Weekly communication with [Mr Mercer] with his children, [C] and [B] whether that be via Skype or phone calls. Calls may be up to an hour.

    ·The ability to visit the kids for the weekend, up to once every 2 months

    ·[Mr Mercer] is to be advised of the address that the children are living at, if the children move to another living situation [Mr Mercer]  must be notified within 48 hours of them moving.

    ·If anything should happy to [Ms Walkenhorst] (sickness, death or deemed incapable of looking after the children), the children ([C] and [B]) are to be returned immediately to their Father [Mr Mercer].[3]

26. The father’s evidence regarding the email exchange between his brother and the mother was inconsistent and unsatisfactory. As best as can be explained, the father’s evidence appears to be that he was generally aware that his brother was communicating with the mother, but he contends that the content of the communication was determined by his brother without reference to the father.

27. The Central Authority did not seek to present any evidence from the father’s brother.

28. The mother contends that on 20 April 2017 she received that following Facebook message from the father:

    You need to let me talk more to [B] and [C] I know I let you go live in Australia just have contact Thanks

29. The father’s evidence in respect to the text message is unclear; however, he again alleges that the Facebook message dated 20 April 2017 was also fabricated.

30. In May 2017 the mother moved with the children to City K where she stayed in a granny flat at the rear of the home of Ms G, Mr H’s aunt. Mr H and the mother’s two eldest children stayed in the main home.

31. In October 2017 the mother and Mr H moved into their own home with all four children.   

Evidence

1. The Central Authority relied upon the following:

   a)Form 2A Family Law (Child Abduction Convention) Regulations Application filed 21 September 2017;

   b)Affidavit of Ms J filed 29 November 2017; and

   c)Case outline document received on 7 December 2017.

2. The mother relied upon the following:

   a)Amended Form 2A filed 1 December 2017;

   b)Affidavit of Ms Walkenhorst filed 15 November 2017;

   c)Affidavit of Ms Z filed 21  November 2017;

   d)Affidavit of Ms Z filed 16 November 2017;

   e)Case Outline and Chronology received 7 December 2017; and

   f)Supplementary Submissions received 11 December 2017.

3. Both the father and the mother were required for cross-examination. In the case of the father, this was by way of telephone communication.

Proposed orders

1. The orders sought by the Central Authority were relevantly as follows:

   1. That paragraph 1-5 of Orders dated 3 October 2017 made by The Honourable Justice McClelland, be and are hereby discharged.

   2. The passports of the Respondent mother  [Ms Walkenhorst] born …1989 and the subject children B (female) born … 2011 and C (male) born … 2014, be released to the Applicant.

   3. The applicant and the respondent make al l [sic] such arrangements as are necessary to ensure the return of the children B (female) born … 2011 and C Mason (male) born … 2014 forthwith in the company of such persons and upon such conditions as this Court deems necessary pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.

   4. The Respondent pay for the costs for the return of the children’s airfares and any other necessary travel expenses to New Zealand and in the event the Respondent returns to New Zealand in the company of the children, the Respondent pays the costs of her own airfares.

   5. The Australian Federal Police remove the names of the following persons from the Watch List in operation at all Australian International arrival and departure points as soon as practicable:

   a. [Ms Walkenhorst] born … 1989;

   b. B (female) born … 2011; and

   c. C (male) born … 2014.

   6. The applicant serve sealed copies of these orders upon the Commissioner, Australian Federal Police.

2. The mother sought the following order:

   1. That the application of the Central Authority filed 21 September 2017 be dismissed.

The Law

Legislation: Overview

1. 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 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.

2. Article 1 of the Hague Convention provides that its objects include “to secure the prompt return of children wrongfully removed to or retained in any Contracting State”.

3. Regulation 2(2) of the Regulations 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.

4. 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.

5. 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.

6. Regulation 16(3) sets out the exceptions to the mandatory obligation to order the return of a child. Relevantly for these proceedings, regulation 16(3)(a) includes 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 …

7. 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

1. The issues to be determined in these proceedings are as follows:

   ·Were the children habitually resident in New Zealand immediately before the children were allegedly wrongfully retained in Australia?

   ·Did the father have rights of custody in respect to the children?

   ·If it is determined that the children were habitually resident in New Zealand, were the children wrongfully retained in Australia?

   ·If it is determined that the children were wrongfully retained in Australia, did the father consent to or acquiesce in the children being retained in Australia?

   ·If the exceptions set out in regulation 16(3)(a) are established, should the Court nonetheless exercise its discretion to order that the child be returned to New Zealand?

Consideration

Credit

1. Counsel for the Central Authority submitted, in circumstances where proceedings concerning an application pursuant to the Hague Convention are somewhat truncated, that it would be inappropriate for the Court to make general findings regarding the credit of either the mother or the father.

2. I acknowledge some merit to that argument particularly in circumstances where the cross-examination of the father occurred over the telephone. Consistent with that submission, I also note that in Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [41] it was observed:

   To disbelieve a party (or any witness for that matter) who swears his or her oath is a serious finding and not to be undertaken lightly without good and sufficient reasons.

1. Nevertheless, there were such serious flaws in the father’s evidence in this case, it is appropriate that I make some findings in respect to credit.

2. In considering the issue of credit in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) Tugendhat J said at [73]:

   There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed "The Judge as Juror: The Judicial Determination of Factual Issues" ... Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not.

   (1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;

   (2) the internal consistency of the witness's evidence;

   (3) consistency with what the witness has said or deposed on other occasions;

   (4) the credit of the witness in relation to matters not germane to the litigation;

   (5) the demeanour of the witness.

3. In this matter it was not possible to assess the witness’s demeanour as he was giving evidence by telephone. Further, in assessing the father’s credit, I do not have regard to matters that are not relevant to this litigation. As will be discussed, however, I do have regard to the first three tests suggested by Tugendhat J.

4. In giving her evidence, the mother responded to questions asked of her in a clear and direct manner. I did not perceive that the mother attempted to embellish or exaggerate her evidence. I accept her to be a witness of credit and I accept the veracity of her evidence.

5. The father, on the other hand, was a poor witness. His evidence was embellished and his answers were frequently lengthy and non-responsive to the questions asked of him.

6. An example of the father’s embellishment is his evidence regarding the extent of the mother’s incapacity.

7. At paragraph 4 of his affidavit dated 21 July 2017 the father said:

   The respondent suffers from a serious medical condition namely a brain tumour and from the outset this has fairly limited her ability to parent the children. In fact such was the level of support she required that I received a caregiver’s benefit and was unable to work during the course of our relationship.

8. The father further said “I have raised the children and provided support for her”.

9. At paragraph 5 of that affidavit the father said:

   During the course of our relationship … her physical condition seriously deteriorated. Her illness manifested itself in problems with memory, coordination and even epileptic seizures.

10. During cross-examination the father confirmed the evidence set out in paragraphs 4 and 5 of his affidavit and stated “I could see – I could see her getting sicker and sicker, yeah”.

11. The father’s evidence to the effect that the mother suffers from a serious and worsening debilitating condition, is a gross exaggeration and was entirely self-serving.

12. Under cross-examination the father acknowledged that the mother has not had any seizures since 2011 and that by 2013 the mother had stopped taking anti-seizure medication.

13. The father acknowledged that the mother has obtained a motor vehicle driver’s licence and that a car was purchased for her to drive with the children.

14. After prevaricating, the father conceded, under cross-examination, that in 2016 he was not sufficiently concerned about the mother’s health that he tried to stop her getting a driver’s licence or getting a car.[4]

15. The father also adopted the practice of disputing the authenticity of several electronic messages when he perceived the contents to be contrary to his interests. The father’s evidence to that effect will be discussed below when considering the specific electronic messages.

16. Further, the father asserted that a message sent by his brother to the mother proposing conditions if the children were to remain in Australia was sent in circumstances where the father was unaware of the content of that message. As will be discussed, it is implausible that this was the case.

17. As I will explain, having regard to the totality of the evidence, I am satisfied that the parties had a mutual intention that the mother would relocate with the children to Australia.

Habitual Residence

Approach

1. 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 children were habitually resident in New Zealand.

2. As will be subsequently discussed, I am not satisfied that an act of wrongful retention has occurred. However, I will consider this issue in the context of the father’s contention that an act of wrongful retention occurred on 31 January 2017.

3. 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.

4. In Re B (A Child) (Reunite International Child Abduction Centre and others intervening),[5] Lord Wilson JSC (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).

   [5] [2016] AC 606 at [27].

5. 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.[6]

   [6] Ibid at [28].

6. In these proceedings, the Central Authority carries the onus of establishing, on the balance of probabilities, that as at the date of the mother’s alleged wrongful retention of the children in Australia, the children’s place of habitual residence was New Zealand.

7. In seeking to prove that the children were habitually resident in New Zealand as at the date of the alleged wrongful retention, the Central Authority contends:

   7. These children have lived their entire life in New Zealand.

   8. It is an agreed fact that they left New Zealand on 14 December 2016. It will therefore be submitted that the children were not living in Australia for an “appreciable period of time” to be habitually resident in Australia as at 31 January 2017.

   9. There is a dispute regarding the intention of the parents with respect to that travel, the respondent asserts it was to relocate, the father asserts that he agreed to a 6 week holiday only. However, on the respondent’s evidence there is evidence of dispute regarding the circumstances of the children as at 1/2/2017 (see annexure ‘J’ and ‘L’ of the respondent’s affidavit). This supports the father’s assertions that the respondent and the father did not have an agreed intention for the children to change their habitual residence.

   10. This Court has very little information regarding the circumstances of the children in Australia other than they have moved at least three times since being in Australia, and as at 31 January 2017 they were residing with the maternal grandparents.

   11. There is no evidence regarding, the following matters as at 31/1/2017, including:

   a. the strength of ties to Australia, however it will be submitted that their ties to New Zealand will be much stronger given the length of time they lived in New Zealand;

   b. the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration.

   …

   13. The father deposes to keeping the house in [City F] for a period of approximately two months, after the respondent failed to return, in the hope that she would return.

8. A parent who is the primary carer of the children cannot unilaterally change the children’s place of residence. This was confirmed in LK v Director-General, Department of Community Services (“LK”),[7] where 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.[8]

   [7] (2009) 237 CLR 582 at 596 [34].

   [8] Ibid.

9. Annexure “J” and “L” of the respondents affidavit, referred to in paragraph 9 of the Central Authority’s submissions extracted above, include an email sent by the father’s brother to the mother and received by her on 1 February 2017.

10. The difficulty for the Central Authority is that the father asserts that the email sent by his brother and received by the mother on 1 February 2017 was sent without the father approving its content. In light of the extent to which the husband’s brother was familiar with the circumstances of his brother, the mother and the children, as indicated in the content of the email, it is in my view implausible that the father’s brother would not have consulted the father before sending the email.

11. However, even if the father’s evidence in that respect is rejected, the email from the father’s brother received 1 February 2017 is ambiguous in respect to the intention of the mother and the father. On the one hand, it seeks to impose preconditions on the father agreeing to assist the mother to obtain Centrelink benefits to facilitate the children remaining in Australia. On the other hand, the email, which was sent one day after the date of alleged wrongful retention, made no reference to the occurrence of that date as being the date that the father alleges the children should have been returned to Australia. The email from the father’s brother to the mother dated 1 February 2017 does not, therefore, assist in determining the intention of the parties.

12. The mother’s evidence that the parties agreed that she would relocate with the children to Australia is consistent with the fact that, with the knowledge of the father, she purchased a one way ticket for herself and the children to travel to Australia. The fact that the mother sold or gave away a number of items of furniture and personal effects in the concluding months of 2016 is also consistent with the mother’s evidence that the parties intended that she would permanently move to Australia with the children.

13. In relation to the airfare, the father acknowledges that funds were used to pay for a one way air ticket for the mother and the children. He stated however that this was because it is cheaper to purchase a ticket for the return leg in Australia. There was no evidence that this was in fact the case or even that the father had made inquiries regarding the comparable cost of a return air ticket as against purchasing separate tickets for the outward and return journey.

14. Instead, the father stated that “it’s a known thing that it’s cheaper to get a ticket in Australia to return to New Zealand. It was that simple”. When further questioned about his assertion that it is cheaper to buy two one-way tickets, (one from New Zealand to Australia and then from Australia to New Zealand) than it is to buy a return airfare, the father retreated from his assertion that it was a “known thing” and stated that he had been convinced of that fact by the mother.

15. I am satisfied that, on or about 15 November 2016, the father was aware that the mother had purchased one-way air tickets for herself and the children to travel from New Zealand to Australia. There is no evidentiary basis for the father’s assertion that he only agreed to this course of action because of his understanding that it was cheaper for separate tickets to be purchased for the outgoing journey and for the return journey.

16. The purchase of a one way ticket and the father’s knowledge of that fact is not, in itself, decisive in determining the intention of the mother and the father but it is a relevant consideration insofar as it is more consistent with an intention that the mother would be permanently leaving New Zealand with the children.

17. In Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 (“Re F”), the UK Court of Appeal held that an important aspect of the trial judge’s findings that the parties intended to permanently relocate to Australia was the fact that the parties had shipped 19 cases of their personal belongings to Australia. In that respect, Butler-Sloss LJ said:

    …the number of packing cases, in itself, is compelling evidence contrary to the suggestion of a holiday, even an extended one.[9]

    [9] at 555.

18. In this case, the mother was not challenged on her evidence that funds provided to her by the father to purchase one way air tickets included an amount for excess luggage. This is again not decisive in establishing intention, but it is more consistent with the mother’s contention and less consistent with the father’s assertion that the parties intended for the mother and children to travel to Australia for only a six week period.

19. Of greater relevance, in my view, is the fact that, in the period between October 2016 and December 2016, the mother, with the father’s knowledge, commenced selling or giving away items of furniture, a motor vehicle and larger personal items including a baby car seat.

20. The father’s evidence in respect to this matter was again unclear however, the father accepted that in the period subsequent to the mother purchasing the one way tickets to Australia in mid-November 2016, the mother commenced selling items of furniture and that “from about 3 December to 13^th [December], she came in and just pretty much cleaned the house out of anything of any worth”.

21. The father’s evidence was to the effect that while the mother had sold some items of furniture in the period from mid-November 2016 until 3 December 2016, in the period from 3 December 2016 until departing for Australia on 14 December 2016, with the assistance of friends, who the husband asserted were known “drug users”, the mother entered the former matrimonial home and cleaned it out of all items of value.

22. The disapproval of the mother’s actions, as expressed by the father, is however, inconsistent with the contents of a text message which the mother states she received from the father on 15 December 2016 which included the statement that:

    I was happy with u selling all our stuff TVs etc

23. The father’s evidence in respect to that text message was unsatisfactory. In giving oral evidence, the father acknowledged that the text message contained statements that he was likely to say, but persisted in saying that the message was a fabrication.

24. Leaving aside the complete absence of any evidence of forgery, it is in my view implausible that the mother would have included in any fabricated text message with the  imputation that she was “endangering the kids safety” and that she “chose to stay with people who use needles every day”.

25. I am satisfied that the father sent the text message and his failure to acknowledge that fact reflected poorly on his credibility.  His lack of credibility in respect of that message also impacts upon my consideration of a further communication to which I will subsequently refer. The text message is significant because it acknowledges that the father was aware that the mother was selling the couple’s personal effects. This is consistent with the mother’s evidence that she sold and gave away the couple’s personal effects with a view to permanently relocating, with the children, to Australia. It is inconsistent with an intention to return to New Zealand.

26. The further communication that is of relevance is a Facebook message that the mother states she received from the father on 20 April 2017 in which the father said:

    You need to let me talk more to [B] and [C] I know I let you go live in Australia just have contact Thanks. (emphasis added)

27. I have previously noted that the father disputes the authenticity of the Facebook message. However, again, in the absence of expert evidence regarding the Facebook message being fabricated, and in light of the father’s lack of credibility in denying that he sent the text message to the mother dated 15 December 2016, I find, on the balance of probabilities, that the father sent the Facebook message to the mother on 20 April 2017. That message contains an acknowledgment by the father that he let the mother “go live in Australia”.

28. In disputing the mother’s assertion that the parties were in agreement that she would move to Australia with the children, the father relies on a handwritten letter which he asserts he handed to the mother on 13 December 2016. The text of that letter is set out in the background facts above. The father asserts that the letter confirms that he only agreed to the children remaining in Australia until 31 January 2017.

29. As noted, the mother denies receiving the letter.

30. In giving oral evidence, the father stated that the annexure which is at page 24 of the Form 2 is a photocopy of the actual letter that he gave to the mother on 13 December 2016.

31. When asked what the mother did with the letter once he handed it to her the father stated:

    Question

    And you never wrote that letter and gave it to [Ms Walkenhorst] on 13 December 2016?

    Answer

    I had the Fathers for Child guy in [City F] witness it and he told me all she has got to do is look at it. And she looked at it before she left.

    Question

    So you didn’t give it to her then?

    Answer

    Yes, I gave it to her and she screwed it up and threw it away but I had a copy.

32. In subsequent questioning, the father was asked:

    Question

    When [Ms Walkenhorst] screwed up the letter and threw it on the ground – that you wrote-?

    Answer

    Yes.

    Question

    - - - what - - -?

    Answer

    ---She laughed.

    Question

    You didn’t argue with her then?

    Answer

    ---She laughed and threw it on the ground and just

    hopped in the car and drove off.

33. In an endeavour to seek further clarification from the witness I asked the following questions:

    His  Honour: And it was on the ground. What happened to the letter after it was thrown on the ground?

    Answer

    ---I would say – it might have just got thrown in the

    bin.

    His Honour

    Who - - -?

    Answer

    ---There was no point. She – she had seen it. I had made a copy of it. I

    had done what the Fathers for Children guy had advised me to do.

34. It is to be noted that the Central Authority has not presented any evidence from the “Fathers for Child guy in [City F]” as to the date that the letter was witnessed.

35. Further, the father’s evidence on this matter was not credible. The father initially made a point of stating that he was able to produce a copy of the letter because he made a copy before approaching the mother and handing it to her. His volunteering of that explanation was superfluous if it was the case that the mother simply threw the letter on the ground. In other words, the father could have readily retrieved the original letter from the ground and attached the original or a subsequent photocopy of the original to his affidavit.

36. In agreeing with counsel for the mother that the mother simply threw the handwritten note on the ground and volunteering that she then drove off, the father was left in a position where there were three possible outcomes. He could have picked up the letter and retained it on his person, he could have left the screwed up handwritten note on the ground, or, he could have picked up the note and placed it in a garbage bin.

37. The father made it clear that he did not pick up the note and retain it on his person. He had the opportunity of explaining which of the second or third alternative courses of action he followed and did not do so. The father simply speculated that “it might have just got thrown in the bin”.

1. The father’s shift in focus from volunteering that he had retained a copy of the letter and, having shifted focus, his inability to give a clear account of what happened to the handwritten note as well as the hesitant way in which he responded to questions on the matter, causes me to reject his evidence. I do not accept that he provided the handwritten note to the mother before she departed New Zealand for Australia. I accept the evidence of the mother that she was not handed a copy of the letter at least until relevant court documents were served upon the mother after they were filed on 21 September 2017.

2. Accordingly, having regard to the totality of evidence to which I have referred, I accept that the parties had a common intention that on 14 December 2016 the mother departed New Zealand to live permanently in Australia with the children.

3. However, establishing the intention of the parties is not the end of the inquiry. In LK 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[10] (“Padwa”), consistent with LK, found that the trial judge fell into error in having “predominated” parental intention over other more pertinent considerations.

   [10] (2016) FLC 93-701.

4. It is potentially significant that the period that the children were in Australia before the alleged wrongful retention was a period of approximately six weeks. In Zotkiewicz & Commissioner of Police (No. 2)[11] (“Zotkiewicz”) 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”.

   [11] (2011) FLC 93-472 at 85,765 [74].

5. In Zotkiewicz,[12] the Full Court stated, however, that “[w]hat amounts to an ‘appreciable period’ will differ from case to case”. In that respect, the decision of Butler-Sloss LJ in Re F  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.

   [12] Ibid at 85,765 [75].

6. It is also of note that, in Padwa,[13] 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.

   [13] (2016) FLC 93-701 at 81,314 [57].

7. 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, the statement of principle by the New Zealand Court of Appeal in Punter v Secretary for Justice[14] (“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[15] 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.

   [14] [2007] 1 NZLR 40.

   [15] [2007] 1 NZLR 40 at 61-62[88].

8. A potential difficulty for the mother in this matter is that she has not provided evidence as to the circumstances of the children as at 31 January 2017 and the extent to which, as at the date of the alleged wrongful retention, the children had assimilated into life in Australia. This would have assisted the Court to make a determination as to the “underlying reality of the connection between the child[ren] and [Australia]”.[16]

   [16] Ibid at 61-62 at [88].

9. However it is not for the mother to establish that the children were habitually resident in Australia at the time of the alleged wrongful retention. It is for the Central Authority to establish that the children were habitually resident in New Zealand.

10. In LK the High Court made it clear that a child can lose habitual residence in one country before becoming habitually resident in another country. In that respect, the High Court said at 594[25]:

    …even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person’s place of habitual residence. So, for example, a person may abandon a place as the place of that person’s habitual residence without at once becoming habitually resident in some other place…

11. Indeed, circumstances may be such that a person abandons or loses their habitual residence in a country in a single day. In that context, in Wenceslas & Director-General, Department of Community Services (“Wenceslas”),[17] the Full Court said:

    It is true, as counsel for the mother pointed out, that the authorities make clear that a place of habitual residence “can be lost in a single day”. However, the authorities are also clear that there must first be a departure from the country of habitual residence. For example, Lord Brandon of Oakbrook (with whom all the other members of the House of Lords agreed) said in In re J (a Minor)(Abduction: Custody Rights) [1990] 2 AC 562 at 578, “A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead”. To like effect, Waite J said in Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 at 995, “... habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning ...” (Emphasis in original)

    [17] (2007) FLC 93-321 at 81,556 [234].

12. In this matter I am satisfied that, on 14 December 2016, the mother left New Zealand in circumstances where there was a shared intention of the mother and the father that the mother would not be returning to New Zealand., Instead that common intention was that the mother was to re-establish permanent residence in Australia. She had purchased one way tickets, and she had also sold or given away many items of furniture, a motor vehicle and personal items. I also accept that she took six suitcases containing her and the children’s belongings to Australia.

13. Where parents are separated and one parent becomes the primary carer of children, the habitual residence of the children follows that of the “principal carer” with whom they reside.[18] In this matter I am satisfied that the mother became the primary carer of the children after the parties separated on 7 December 2016. After that date, the children lived exclusively with the mother, although they did spend one night and additional periods of time with the father prior to the children departing New Zealand with the mother on 14 December 2016.

    [18] Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 at 556.

14. Even if the mother was not the primary carer of the children when she left the former matrimonial home with the children on or about 7 December 2016, I have noted that, on 20 April 2017, the father sent the mother a Facebook message in which he said “You need to let me talk more to [B] and [C] I know I let you go live in Australia just have contact Thanks”. (emphasis added)

15. In the circumstances of this matter, I am of the view that the preferable construction of that Facebook message is that the father’s use of the word “you” was intended to refer not simply to the mother but also to the children. In other words, the Facebook message confirms that the parties intended that the mother would be the primary carer of the children at least when the mother moved to Australia with the children on 14 December 2016.

16. In summary, and by way of conclusion on this issue, I am satisfied that the mother and the children ceased to be habitually resident in New Zealand on 15 December 2016, the day after they departed New Zealand for Australia. In those circumstances, it is unnecessary to determine whether the children were habitually resident in Australia as at 31 January 2017.

Consideration: rights of custody

1. Sections 15, 16, and 97 of the Care of Children Act 2004 (NZ) 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.

2. In this matter I am satisfied as to the following.

   ·The father is the children’s biological father. The father’s habitual residence is New Zealand.

   ·The mother and father were in a de facto relationship from mid-2011 until early December 2016.

   ·The children were both born as a result of the union of the mother and father, in New Zealand.

   ·At the time of the children’s births, both the mother and the father were habitually resident in New Zealand.

3. 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), I am satisfied that the father had rights of guardianship in respect to the children at the time of the children’s removal from New Zealand on 14 December 2016 and as also at the date of the alleged wrongful retention of 31 January 2017. Accordingly, the father has rights of custody pursuant to the Hague Convention.

4. Nevertheless, if I am correct in determining that the father agreed for the children to move into the care of their mother and live with her in Australia on an indefinite basis, then it is necessarily the case that the father exercised his rights of custody to determine that the children’s place of residence was, after 14 December 2016, in Australia.

5. The retention of the children in Australia after that date was, therefore, not wrongful in that it was not contrary to the father’s rights of custody.

Consideration: Wrongful Retention

1. For completeness, I note that even if I had determined that the children’s retention in Australia beyond 31 January 2017 was contrary to the father’s rights of custody in respect to the children, I would not have found that wrongful retention occurred as alleged in the Form 2 Application.

2. In explaining my finding in that respect, I note that it is 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.[19]

   [19]Director-General, Department of Families & BW (2003) FLC 93-150 at 78,490-1.

3. 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[20] 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. (Emphasis added)

   [20]  at 767.

4. In these proceedings, there is no question that the children lawfully travelled to Australia and were lawfully present in Australia up until the point where the father alleges that the children were wrongfully retained in Australia on 31 January 2017. The Central Authority carries the onus of establishing that a period of time expired, or an event occurred, that resulted in a wrongful retention of the children.

5. 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.

6. At paragraph 12 of his affidavit the father stated:

   Despite the separation I was extremely concerned over the applicant’s wellbeing. I reiterate she has serious health concerns to the degree that I have been her paid carer previously. In some ways given her state I thought a few weeks with her parents would not be a bad thing.

7. The evidence of the father is, at best, a statement of a conclusion by him that there was an agreement between him and the mother that she would return to New Zealand after a few weeks holiday. There is no evidence in the form of primary facts that justifies that conclusion. Specifically, there is no account of words used in a conversation or even the effect of any such words. The mother denies any such conversation occurred. The Central Authority has therefore failed to satisfy the Court that the parties agreed the mother would return to New Zealand after a few weeks holiday in Australia.

8. Further, earlier in these reasons, I explained why I reject the father’s evidence that, on 13 December 2016, he gave the mother the handwritten letter insisting upon her returning to New Zealand, with the children, by 31 January 2017.

9. Counsel for the Central Authority acknowledged that, aside from the alleged handwritten letter, there was no request for the mother to return the children to New Zealand until the Form 2 documents were served upon her after the commencement of these proceedings.

10. I respectfully agree with counsel for the mother that the Central Authority cannot rely upon an event, occurring after the commencement of proceedings, as establishing wrongful retention justifying the commencement of the proceedings.

11. Accordingly, the Central Authority has failed to discharge the onus, which it carries, of establishing a date or the occurrence of an event as triggering the act of alleged wrongful retention. 

consent

1. For the reasons set out above I have found that the Central Authority has not established that the children were habitually resident in New Zealand as at the date of the alleged wrongful retention. Further, I have found that, even if habitual residence in New Zealand had been established, the Central Authority has failed to establish that an Act of wrongful retention has occurred.

1. As noted, the mother has argued that, even if it was to be found that the children were wrongfully retained in Australia, the father consented to that occurring in terms contemplated by regulation 16(3)(a)(ii).

2. In order to establish the defence of consent, the mother must establish that the father consented to the children being retained in Australia.

3. In Wenceslas at 81,559,[21] the Full Court referred to the views of Hale J in Re K (Abduction: Consent) [1997] 2 FLR 212 (“Re K”) 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.

   [21] at [262].

4. The Full Court in Wenceslas further said at 81,560:

   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. [22]

   [22] at [264].

5. In terms of consent being “inferred from conduct”, it has been held the aggrieved party’s overall attitude, statements and conduct including “in standing by whilst [the other party] made preparations to leave… [may] demonstrate a course of conduct from which [the aggrieved party’s] consent can properly be inferred”.[23]

   [23]Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 at 189.

6. Consent does not imply that “the person concerned is happy or content with the outcome that has been agreed”.[24]

   [24] Secretary, Department of Family and Community Services & Prim [2015] FamCA 16 at [83], citing Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 at 188 and 190.

1. Consent once provided and acted upon cannot be taken away. Specifically in Re K, Hale J stated that consent could not be taken away by the aggrieved party “subsequently thinking better of it”. [25]

   [25] at 218.

2. In a similar context, in Regino & Regino,[26] Lindenmayer J concluded on the facts before him that:

   I am quite satisfied, on the balance of probabilities that, before the mother departed from the United States with M on 25 November 1993, she intended that, thenceforth, she and the child would reside permanently in Australia and that the husband knew of and accepted that intention… In my view, that consent, once given in those circumstances, could not be subsequently withdrawn by the husband, so as to be considered inoperative for the purposes of the sub-regulation, in relation to the mother’s retention of the child in Australia after the husband changed his mind and demanded the child’s return.

   [26] (1995) FLC 92-587 at 81,820.

3. In these proceedings, I am satisfied that the father agreed to the mother travelling to Australia and to live there on a permanent basis with the children. For the reasons set out above, I accept the mother’s evidence in that respect. I further note that the Facebook message sent by the father to the mother on 20 April 2017 corroborates the mother’s account of the father agreeing to her travelling to Australia with the children with a view to living there on a permanent basis.

4. In summary, in my view, there was “real” and “unequivocal” consent in terms of the words and conduct of the father which could properly be interpreted by the mother as the father having consented to the children travelling to Australia with the mother and living with her in Australia on an indefinite basis.

5. That consent was acted upon by the mother who purchased one way tickets for herself and the children to travel to Australia. It was further acted upon by the mother by her actions in selling or giving away items of furniture, a motor vehicle and a baby car seat before departing for Australia.

6. Once the mother acted upon the father’s consent in the manner that I have described, it could not be withdrawn by the father thinking better of it. In that context, even if I had accepted the evidence of the father that, on 13 December 2016, the day before the mother departed New Zealand, he gave a handwritten note to the mother requiring her to return to New Zealand with the children by 31 January 2017, I would have found that letter to be ineffective in negating the consent that he had already given. This is because, even if the letter had been handed to the mother, it occurred at a point in time when she had already acted upon the father’s consent.

Exercise of discretion

1. As previously noted, in circumstances where the Court finds that a parent has made out a defence under regulation 16(3) the Court may nonetheless exercise its discretion to require the children to be returned to their country of habitual residence.

2. In  H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 - 575, Waite J provided practical guidance by identifying the various factors that might be taken into account in the exercise of such discretion. They included:

   (a) the comparative suitability of the forum to determine the child’s future in the substantive proceedings;

   (b) the likely outcome (in whichever forum) of the substantive proceedings;

   (c) the consequences of the acquiescence;

   (d) the situation which would await the absconding parent and the child is compelled to return;

   (e) the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and

   (f) the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.

3. I will refer to those factors which I consider would be most relevant to the exercise of my discretion in these proceedings.

4. In terms of the comparative suitability of the forum to determine the children’s future in any substantive proceedings between the mother and the father, I accept that the legal processes, courts and tribunals in New Zealand are equally as suitable to those in Australia.

5. However, I am not, in these proceedings, in a position to determine the likely outcome of any such substantive proceedings.

6. The consequence of the father consenting to the children remaining in Australia will be that the dispute between the parents regarding whom the children should live with and spend time with will need to be resolved in this Court.

7. While I did not find it necessary to make a finding whether, as at 31 January 2017, the children were habitually resident in Australia, the mother was not challenged on her evidence that:

   66. Since I returned to Australia, I have been spending time with [Mr H] and my two oldest children, [D] and [E]. They came to visit me at my parents' house in Sydney. I took things slowly, because I was out of their lives for 5 years.

   67. [Mr H] and I also started to talk about things and try to work things out between us.

   68. In May 2017, [Mr H] and I both moved to [City K] to live at his aunt, [Ms G's] place. She has a house with a garage converted into a granny flat. [Mr H] lived in the house with [D] and [E], and I lived in the garage with [B] and [C].

   69. Just recently, in October 2017, we signed a lease and moved into a place together. It is a three bedroom house, so that [D] and [E] can share one room and [B] and [C]the other. I am enjoying the responsibility of having all my children together with me and looking after them.

   70. We are still close to [Ms G] which is important, because she is close to [D] and [E] and I really value her support for me too. Since [Mr H] and I got our own place, [Ms G] sometimes still has all the kids over for dinner. [D] and [E] sometimes stay overnight.

   71. [D], [E] and [B] are enrolled in the local school, while [C] is at home with me. [B] is doing gymnastics through school, [D] is doing Martial Arts and [E] is doing swimming lessons.

8. Having regard to that evidence I am satisfied that, as at the date of the hearing, the children are now habitually resident in Australia and are residing with their mother and their half-siblings. In those circumstances, it is quite appropriate for this Court to consider future parenting arrangements for the children.

9. In terms of the potential impact upon the purpose and underlying philosophy of the Hague Convention, I note that this is not a case where the mother has abducted the children from their country of habitual residence. A wrongful retention entails retaining the child in a country in clear breach of the other parent’s right of custody. In this case the children came to Australia with the agreement of both parents.

10. In those circumstances, declining to make an order for the children’s return to New Zealand will not in my view adversely impact upon the purpose and underlying philosophy of the Convention.

11. Finally, I note that an order for the immediate return of the children would result in the children being returned to live in New Zealand away from their half-siblings with whom they now reside and, with whom B attends school.

12. In the circumstances I would not have exercised my discretion to require to mother to return the children to New Zealand.

Conclusion and Orders

1. By way of summary and conclusion, I have found that the Regulations do not apply in these proceedings because the children were not habitually resident in New Zealand at the time of the alleged wrongful retention. In the event that I had found that the Regulations did apply, I would have found that the mother did not wrongfully retain the children in Australia and, alternatively, that the defence of consent was established. I would have also declined to exercise my discretion to order the return of the children.

2. Accordingly, for all of the reasons set out above, I will dismiss the Central Authority’s application.

I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 6 February 2018.

Associate:

Date:6 February 2018