Secretary, Department of Family and Community Services & Zadeh
[2017] FamCA 44
•2 February 2017
FAMILY COURT OF AUSTRALIA
| SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & ZADEH | [2017] FamCA 44 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the children moved into the mother’s care in Australia following their removal from the paternal family pending investigation of allegations of physical abuse by New Zealand government authorities – Where there is a dispute as to the agreement which resulted in the children moving into the mother’s care – Where the Court finds the parties agreed for the children to move into the mother’s care in Australia on an indefinite basis – Where the Court finds the children were not habitually resident in New Zealand – Where the Court finds that the children were not wrongfully retained in Australia by the mother – Where the Court would have found the “defences” of sub regulations 16(3)(a)(ii) and (c) made out by the mother – Where the Court would not have exercised its discretion to return the children to New Zealand – Application dismissed. |
| Care of Children Act 2004 (NZ) s 97 De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640 |
| APPLICANT: | Secretary, Department of Family and Community Services |
| RESPONDENT: | Ms Zadeh |
| FILE NUMBER: | SYC | 5791 | of | 2016 |
| DATE DELIVERED: | 2 February 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 15 November 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tocker |
| COUNSEL FOR THE RESPONDENT: | Ms Conte-Mills |
| SOLICITOR FOR THE RESPONDENT: | John Spence & Associates |
Orders
The Form 2 Application filed 8 September 2016 is 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 & Zadeh 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 5791 of 2016
| Secretary, Department of Family and Community Services |
Applicant
And
| Ms Zadeh |
Respondent
REASONS FOR JUDGMENT
Introduction
By Form 2 Application filed on 8 September 2016, 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 aged 14, C aged 12 and D aged 8 (“the children”) to New Zealand. The orders are sought under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), which implements 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 Zadeh (“the mother”) who maintains that, in the context of investigations being conducted by Child Youth and Family Services (“CYFS”) in New Zealand, Mr E (“the father”) agreed to the children moving into her care and travelling with her to live in Australia on an indefinite basis. Alternatively, the mother argues that to return the children to New Zealand would place them in an otherwise intolerable situation. The mother further asserts that the children have an objection to being returned to New Zealand and the nature and strength of their objection is such that it is beyond a mere expression of a preference or of ordinary wish and should be appropriately taken into account by the Court.
At the final hearing on 15 November 2016 it was acknowledged that, at the time B was born, the parties were not living together and, according to New Zealand law, the father therefore does not have rights of custody in relation to B. Accordingly, the Central Authority indicated that it no longer sought a return order in respect to B.
As the position of the Central Authority in respect to B was confirmed at the final hearing, by email dated 5 December 2016 I sought confirmation from the Central Authority that their application for the return of the two younger children, in the absence of orders being made in respect to B, was made with the knowledge and consent of the New Zealand Central Authority and the father.
By email dated 8 December 2016 the Central Authority replied and confirmed:
·the application for the return of the two younger children is made with the knowledge and consent of the New Zealand Central Authority and the father. The father and the New Zealand Central Authority became aware of the position regarding rights of custody in respect to [B] (recognising that the Court lacked the power to make a return order under the Regulations in respect of [B]);
·the Applicant and the father seek orders for the two younger children to be returned to New Zealand;
·it is the hope and expectation of the father that if orders are made for the return of the two younger children to New Zealand, the mother will agree to, and facilitate, the return also of [B] to New Zealand (but this is a matter for the mother).
During the course of the final hearing it was acknowledged by both parties that, at the time of leaving New Zealand, the children were habitually resident in New Zealand. By email dated 30 November 2016 I invited the parties to provide brief further submissions addressing the issue as to where the children were habitually resident as at the time of the alleged wrongful retention in Australia. I also requested the parties to provide brief additional written submissions to address the relevance, if any, to the present proceedings of Re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76 (“Re R (Children)”). Those additional submissions were received from the Central Authority on 6 December 2016 and from the mother on 22 December 2016.
Background Facts
The father was born in New Zealand in 1977 and is currently aged 39. The mother was born in the Middle East in 1981 and is currently aged 35.
In 1999 or 2001 the parents began a relationship.
In 2001 the eldest child, B, was born. He is currently aged 14. After the birth of B, the parents commenced living together.
In 2004 the second eldest child, C, was born. She is currently aged 12.
In 2008 the youngest child, D, was born. She is currently aged 8.
In mid-2009 the father says he and the mother separated agreeing for the children to live with them on “a week about basis”. The mother, however, says that final separation occurred in 2010 and, rather, it was agreed that the children were to live with the mother and spend time with the father during the week and each weekend.
The mother asserts that due to the amount of time she was spending away from the children, as result of her working hours, the children were given a choice about where they wanted to live in May 2011. All three children stated that they wished to live with the father. Soon after, the children moved into the paternal grandmother’s home with the father. The paternal grandmother’s home is also shared with the father’s two sisters.
While there is some uncertainty about the exact date, it appears that in August 2011 the mother initially moved to Sydney.
In January 2012 the mother says she returned to New Zealand as she was going to be made redundant.
In March 2012 the mother says she returned to Sydney to find work and subsequently obtained a job in Brisbane.
In July 2013 the children travelled to Brisbane for a three week holiday with the mother.
In 2014 the mother obtained a job in Sydney.
In September 2014 the mother travelled to New Zealand to spend time with the children during their school holidays.
In December 2014 the children visited the mother in Sydney.
In July 2015 the mother travelled to New Zealand to visit the children.
On 24 May 2016 the father was visited by two social workers from CYFS. CYFS is the equivalent to the New South Wales Department of Family and Community Services in New Zealand. The social workers advised the father that there had been a notification that the children had been abused by their paternal grandmother and aunts and that it was necessary for the children to be removed from the home immediately. The father says that he initially moved with the children to a cousin’s home.
On 25 May 2016 the father contacted the mother to tell her about what had occurred and the allegations that had been made.
On 26 May 2016 the mother says she tried to contact the father to get details as to the children’s whereabouts. She subsequently contacted CYFS to obtain their details instead.
On 27 May 2016 the father was instructed to bring the children to the police for an interview. After the interviews had concluded, the father was advised that it was alleged that he had smacked one of his daughters a couple of days earlier. The father was then asked to arrange for somebody else to look after the children while an investigation was completed. The father says his cousin collected the children and he did not remain with them.
On 29 May 2016 the mother travelled to New Zealand and subsequently met with CYFS and the children.
On 30 May 2016 the father attended a meeting at the offices of CYFS accompanied by his mother, sisters and approximately twenty other family members and friends who were associated with the father’s local church. The mother was also present at the meeting.
The parents give differing versions as to what occurred at the meeting but it is agreed that it resulted in the father later signing a letter authorising the mother to return to Australia with the children. The father, however, maintains that he signed the letter in circumstances of “duress” and the pressure of the CYFS and police investigations that were taking place.
There is ambiguity in the father’s evidence insofar as, at one point in his evidence, he asserts that it was agreed between the parties that the children would be returned to him at the conclusion of the police investigation and, at another point in his evidence, he asserts that the understanding was that the children would be returned at the conclusion of the CYFS investigation.
On 3 June 2016 the children flew to Sydney with the mother. The mother and the children were taken to the airport by the father where they were also farewelled by the paternal grandmother.
On 7 June 2016 the father’s sister received an email from a CYFS social worker, Ms F, in which she advised that:
If the children were still here and returning to your care I would have discussed a plan with you all, for their return and made some recommendations. I did let the police know that you were all co-operative with CYFS and that I was looking at the children returning to your care under a Family/Whanau Agreement.
The father’s sister received a further email that day from Ms F stating that CYFS would be closing their file.
On 15 June 2016 the children commenced school in Sydney.
On 22 June 2016 the police attended the father’s home with a letter advising that they were “satisfied that physical discipline has occurred in the past against the children” and that “it was not serious and did not result in an injury”. The letter then advised that the police would not be taking any further action.
The father says that by text message sent on 5 June 2016, he requested the mother to arrange the return of the children to New Zealand but she refused.
On 7 July 2016 the mother received an email from Ms F, the CYFS social worker, within which she advised that:
This is to acknowledge and support [the mother] with the return of her three children… back into her care.
…
I supported this move as I believe it was in the best interest of the children. All three children were wanting to go and live with their mother.
Since 8 July 2016 the father has not had any communications with the children or the mother.
On 15 August 2016 an application was made by the New Zealand Central Authority to the Australian Central Authority for the return of the children.
Evidence
The Central Authority relied upon the following:
a)Case Outline document dated 8 November 2016 and Addendum to Case Outline document dated 12 November 2016 (Exhibit 1);
b)Supplementary written submissions dated 7 December 2016;
c)Form 2 Application filed 8 September 2016; and
d)Affidavits of Ms G filed on 2 November and 9 November 2016 respectively.
The mother relied upon the following:
a)Case Outline document dated 10 November 2016 (Exhibit 2);
b)Supplementary written submissions dated 22 December 2016;
c)Form 2A Application filed 28 October 2016;
d)Affidavits of the mother filed 21 October 2016 and 14 November 2016 respectively; and
e)Affidavit of Ms H filed 10 November 2016.
The Court also had the benefit of a Hague Report prepared by a Family Consultant, Ms I, dated 11 November 2016 (“the Hague Report”). The Hague Report had been ordered by consent on 4 November 2016 and sought to address:
…the following matters for each child:
(i)whether the child objects to being returned;
(ii)if so, whether the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes; and
(iii)if so, whether the child has attained an age, and maturity, at which it is appropriate to take account of his or her views.
No witnesses were required for cross-examination.
The Law
Legislation: Overview
Section 111B(1) of the Family Law Act 1975 (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.
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”.
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.
In these proceedings, no issue was taken with the proposition that both parties had the requisite rights of custody of the two younger children, C and D. There is an issue, however, as to whether at the time of the alleged wrongful retention the children were habitually resident in New Zealand.
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 children being retained in Australia as contemplated by regulation 16(3)(a)(ii);
(ii)there is a grave risk that the return of the children would otherwise place them in an intolerable situation as contemplated by regulation 16(3)(b); and
(iii)the children object to being returned as contemplated by regulation 16(3)(c).
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 were the children habitually resident immediately before they were allegedly wrongfully retained in Australia?
·If it is determined that the children were habitually resident in New Zealand, were they wrongfully retained in Australia?
·If it is determined that the children were wrongfully retained in Australia, did the father consent to the children being retained in Australia?
·If it is determined that the father consented to the children being retained in Australia, was any such consent vitiated by “duress” or pressure the father felt from the mother and the CYFS and police investigations?
·Would the children be placed in an “otherwise intolerable situation” if an order for the children to be returned to New Zealand was made as completed by regulation 16(3)(b)?
·Insofar as the children have voiced an objection to being returned to New Zealand, do their objections satisfy the criteria set out in regulation 16(3)(c)?
·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 children 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 children were 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),[2] 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).
[2] [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 children were wrongfully retained in Australia is predicated on the children being habitually resident in the New Zealand immediately before the date of the alleged wrongful retention. In these proceedings there is a dispute as to whether the father agreed to the children moving to Australia to live with the mother on an indefinite basis.
It is of note that there is a difference of approach between the courts in Australia and the United Kingdom as to whether a child’s habitual residence can be unilaterally changed by one parent. In the United Kingdom, the Supreme Court has taken a broader approach than that taken by the High Court of Australia. This is reflected in the Supreme Court’s decision in Re R (Children).
In Re R (Children) Lord Reed JSC (with whom Baroness Hale of Richmond DPSC, Lord Clarke of Sone-Cum-Ebony, Lord Wilson and Lord Hughes JJSC agreed) said that, in determining the country of habitual residence:
16. … It is therefore the stability of the residence that is important, not whether it is of a permanent character. There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.
17. As Baroness Hale DPSC observed at para 54 of A v A, habitual residence is therefore a question of fact. It requires an evaluation of all relevant circumstances. It focuses on the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It is necessary to assess the degree of integration of the child into a social and family environment in the country in question. The social and family environment of an infant or young child is shared with those (whether parents or others) on whom she is dependent. Hence it is necessary, in such a case, to assess the integration of that person or persons in the social and family environment of the country concerned. The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce. In particular, it follows from the principles adopted in A v A and the other cases that the Court of Appeal of England and Wales was right to conclude in In re H (Children) (Reunite International Child Abduction Centre intervening) [2015] 1WLR 863 that there is no “rule” that one parent cannot unilaterally change the habitual residence of a child.
In contrast, in LK v Director-General, Department of Community Services (“LK”),[3] 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.
[3] (2009) 237 CLR 582 at 596[34].
The challenges associated with determining whether a shared parental intention existed was also acknowledged by the Full Court in Zotkiewicz & Commissioner of Police (No. 2)[4] (“Zotkiewicz”) wherein the Full Court said:
The reference by the High Court in this passage [LK at 599[44]) to a “shared intention” gives rise to the question of how the law deals with cases where the intentions of one parent may be described as “settled”, but the other parent has different intentions that cannot be so described.
[4] (2011) FLC 93-472 at 85,765 at [25].
It remains to be seen whether the Full Court (or the High Court) will solve that dilemma by applying Re R (Children) to find that, insofar as the intention of the parents is relevant in determining whether there has been a change in a child’s place of habitual residence, it is unnecessary to find the existence of a shared parental intention.
There is some attraction to the approach taken by the UK Supreme Court in Re R (Children) that, for the purposes of determining habitual residence under the Hague Convention, the stability of residence from the child’s perspective (rather than the parents’ intention) is important. In that respect, I note that in Secretary, Department of Family and Community Service & Padwa (“Padwa”),[5] the Full Court made reference to the desirability of consistency of approach between Hague Convention countries. Nevertheless, if the approach taken by the UK Supreme Court in Re R (Children) is to be applied in Australia, it should be done at an appellate level. Accordingly, and for the avoidance of doubt, I do not in these proceedings apply the reasoning of Re R (Children) in respect to it being unnecessary to find shared parental intention to establish a change in the habitual residence of a child.
[5] (2016) FLC 93-701 at 81,311 at [35].
Moreover, it is not necessary in these proceedings to resolve the apparent difference in approach between the UK and Australian courts. In that respect, I note that, 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 Padwa, consistent with LK, found that the trial judge fell into error in having “predominated” parental intention over other more pertinent considerations.
Further, in applying LK, the Full Court in Zotkiewicz held that reservation or ambiguity on the part of one party did not necessarily preclude a change in the child’s place of habitual residence. In that respect the Full Court said:
We also accept that merely because the purpose of an international relocation may be to allow parents to work on their relationship does not mean their purpose in relocating cannot be regarded as “settled”. Re B [(Minors) (Abduction) (No. 2) [1993] FLR 993] is an example of one such case. Similarly, the fact one party may be reluctant to agree to a move to a new jurisdiction; has misgivings about the state of the marital relationship; and has taken advice about a divorce before departing, does not mean they will not acquire a place of habitual residence in the new jurisdiction (see Feder v Evans-Feder [1995] USCA3 892; (1995) 63 F. 3d 217).
A further point of difference with the approach taken by the UK Supreme Court is in respect to the length of time ordinarily required to establish habitual residence. As noted, in Re R (Children), the UK Supreme Court held that there is no requirement that the child should have been resident in the country in question for a particular period of time. The Australian position is explained in Zotkiewicz[6] in the following terms:
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”.
[6] at 85,765 at [74].
Nonetheless the Full Court acknowledged 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 (A Minor) (Child Abduction) [1992] 1 FLR 548 at 555 was noted wherein 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.
It is also of note that, in Padwa,[7] 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.
[7] at 81,315 at [57].
Once again, it is unnecessary for the purposes of these proceedings to resolve the apparent difference in emphasis between the UK and Australian courts. Ultimately, the differing emphasis has little practical effect when the approach suggested by the High Court in LK is followed. 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[8] (“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[9] 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 children 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.
[8] [2007] 1 NZLR 40.
[9] at 61-62[88].
In conducting a broad factual inquiry for the purposes of these proceedings, in order to determine the “underlying reality of the connection between the child and [Australia]”,[10] it stands to reason that the existence of a shared intention on the part of the parents for the children to move to Australia to live with the mother and steps subsequently taken by her to assimilate the children into life in Australia, consistent with that intention, will increase the likelihood of the children becoming settled in Australia in a relatively short period of time.
[10] Punter at 62-63[88].
In setting aside orders for the return of the children to Israel, the High Court in LK concluded:[11]
[11] at 601[49].
Where, as here, the parent’s intentions at the time of departure from Israel were expressed conditionally (to live in Australia unless … ) and the mother took the steps she did, both before and after arrival in Australia, to establish a new and permanent home for the children in Australia, it should have been found that the children were not habitually resident in Israel in July 2006. The possibility that they might again take up habitual residence in Israel (if their parents were reconciled) does not deny that they had ceased to be habitually resident there. Whether they were habitually resident in Australia when the father asked for their return need not be decided. What is decisive is that the children left Israel with both parents agreed that unless there were a reconciliation they would stay in Australia, and their mother, both before and after departure, set about effecting that shared intention.
(Emphasis in original)
In LK the High Court also 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…
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”),[12] the Full Court said:
[12] (2007) FLC 93-321 at 81,556 at [234].
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)
It is important to note, however, that for the purposes of the Hague Convention, or more relevantly to avoid thwarting the purpose of the Hague Convention, a change in geography must occur before the alleged wrongful removal or retention. Further, in circumstances where one parent is taking the children from a country in which they were habitually resident, that change in geography must occur with the knowledge and consent of the other parent.[13]
[13] Ibid at [239].
In these proceedings, there is no doubt that the children left New Zealand with the mother on 3 June 2016. It is also clear that they did so with the knowledge and consent of the father. The question to determine, however, is whether the circumstances in which the children left New Zealand with the mother resulted in the children’s place of habitual residence changing from New Zealand to Australia or, at least, ceasing to be New Zealand. That question can be broken down further into the following questions:
1.Did the children, prior to the date of alleged wrongful retention, move from being in the primary care of the father to the primary care of the mother on an indefinite basis?
2.If so, did the change in the children’s geography result from them moving from the primary care of the father to the primary care of the mother?
3.Did the circumstances in which the change of geography occurred result in the children becoming habitually resident in Australia or, at least, ceasing to be habitually resident in New Zealand?
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.
As will be discussed, a major difficulty with the Central Authority’s case is that they have been unable to point to any direct communication between the parents that establishes the existence of an agreement between the parents that the mother was to take the children with her to Australia only for a limited period of time. In fact, the one written record evidencing the nature of the parties’ agreement establishes the contrary. That written record is also consistent with the surrounding circumstances and conduct of the parents as well as CYFS.
Did the children, prior to the date of alleged wrongful retention, move from being in the primary care of the father to the primary care of the mother on an indefinite basis?
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.[14]
[14] Re F (A Minor) (Child Abduction) [1992] 1 FLR 548.
I am satisfied that on 30 May 2016 the mother became the primary carer of the children on an indefinite basis for the following reasons.
On 13 May 2016 CYFS received a report[15] from the principal of the children’s school in New Zealand that:
[C] disclosed to a staff member of the after-school care that she attends that she has been a victim of physical abuse in her own home. She has been struck across the face and hit repeatedly by a jandal. It was not disclosed who had hit her.
[C] disclosed to the staff member that she fears going home and never wants to go home at the end of the day. [C] also said that she wants to run away from home.
[15] Affidavit of Ms G filed 2 November 2016 at page 40.
As result of receiving that report, CYFS commenced an investigation into the welfare of the children and also notified police. As part of the CYFS investigation, the children were interviewed at their school on 24 May 2016. In a file note completed the following day, it was noted that the children had disclosed to the social worker that they had been hit with a “jandal, wooden spoon and spatula”.[16] A “jandal” was identified by counsel during closing submissions to be a sandal without a heal strap.
[16] Ibid at page 51.
Also on 24 May 2016, Ms F, the social worker responsible for the CYFS investigation, undertook a home visit for the purpose of interviewing the father, the paternal grandmother and paternal aunts. After interviewing the father, Ms F advised the father that “the girls need to go and stay somewhere else until further notice as an investigation is under way by CYFS and Police are also involved”.[17]
[17] Ibid at page 49.
As a result of the father agreeing for the children to be placed with other family members, the children were not bought into the care of the CYFS.[18]
[18] Affidavit of Ms H filed 9 November 2016 at page 58.
On 30 May 2016, CYFS arranged for a meeting to occur in order to discuss care arrangements for the children pending completion of the CYFS and police investigation. As previously noted, the father attended that meeting accompanied by the paternal grandmother, aunts and approximately twenty other family members and friends from his local church. There is some confusion in the evidence regarding the date of that meeting as the meeting notes are dated 30 June 2016. I am satisfied, however, that the meeting occurred on 30 May 2016 and where there is a reference in various parts of the evidence to a meeting occurring on 31 May 2016 or 30 June 2016, it is to be accepted that the meeting in fact occurred on 30 May 2016.
At the meeting Ms F’s advised the parties in attendance that she had “not closed the possibility of the children returning home” but that she would need to “wait to see the outcome to the police investigation”.[19]
[19] Affidavit of Ms G filed 2 November 2016 at page 68.
In an affidavit sworn by the father on 15 August 2016 in support of the Central Authority’s Form 2 Application, the father deposed:
25. [The mother] was concerned that she didn’t know my cousin [with whom the children were living following the intervention of CYFS]. She wanted the kids to stay with her. I was okay with that but wanted them to stay in New Zealand as she had three weeks off work. She wanted to take the kids back with her to Sydney as she said that they couldn’t all stay with her sister’s partner’s family in [City J] as that would be too much of a burden for them. She said that she had always wanted the opportunity to look after the kids. I asked her to wait as I was confident that the investigation would be completed quickly and knew that there were no concerns. She refused to wait. She demanded that I give the children’s passports to her.
26. I made it clear that I knew what the outcome of the investigation would be and that it was all fine. I said that I expected the children to come back to me in New Zealand at that point. [The mother] said that she would be prepared to look at that in six months if they weren’t happy. I responded that I didn’t agree as I didn’t want to risk [B] schooling and the progress he was making.
27. [The mother] insisted that I signed a letter confirming that the children were in her care so that she could obtain medical insurance for them in Australia. She prepared a letter on the library computers and demanded that I signed it then and there. She would have that letter.
(Emphasis added)
At paragraph 61 of her affidavit filed 21 October 2016, the mother summarised the outcome of the meeting on 30 May 2016 as follows:
At the meeting one of the church members who I know as [Mr K] said “well if the children can’t go to their dad, why don’t they go to their mother in Sydney”. The caseworkers agreed and [the father] agreed. His family also agreed to this arrangement. After this meeting, [the father] and I had a meeting in the presence of all three children. During this meeting, [the father] asked the children “Where do you want to live? Do you want to stay with me or go to Australia with your mum”. [C] and [D] replied first. They both said “we want to go with mum”. [B] hesitated. He looked to [the father] and said “I’m sorry dad, but I’m going to go with mum”.
B’s view was not confirmed on the day of the meeting; however, it is not in dispute that prior to the mother travelling to Australia on 3 June 2016, B did express a desire to travel to Australia with the mother and his two sisters.
The father provided a second affidavit sworn on 31 October 2016, in which he responded to the mother’s affidavit filed 21 October 2016, and repeated that it was not his intention for the children to travel to Australia to live there permanently with the mother.
The father’s evidence, as set out at paragraph 27 of his initial affidavit, was that, at the meeting on 30 May 2016, he was forced “then and there” by the mother to sign a letter “confirming that the children were in her care”. This is inconsistent with the evidence set out in his second affidavit wherein at paragraph 29 the father deposed:
I accept that I wrote a letter for [the mother] confirming that the kids would live with her (page 38 of her Affidavit). I did that because I understood from her text message sent to me on 1 June 2016 that she needed that to fund healthcare for the children while they were with her (page 39 of her Affidavit). That didn’t change the fact that I expected the children would be returned to my care once the police investigation was completed.
The letter signed by the father, which was set out at page 38 of the mother’s affidavit filed 21 October 2016, read as follows:
This is a letter of confirmation that from 6th of June 2016, [B], [C] and [D], will now be living with their mother… in Sydney, Australia.
Should you need more information, please do not hesitate to make contact with me either email or a phone call.
The text message referred to by the father, which was set out at page 39 of the mother’s affidavit, was sent by the mother on 1 June 2016, two days after the 30 May meeting. The text message read as follows:
Morning… kids r [sic] awake except for [D]. She still snoring away lol. Gonna get ready soon. I need a letter from u [sic] that says kids will be staying and under my care from 30 May and that they will be leaving with me on Friday 03 June to Sydney. I need proof for Medicare card and health fund. I already have them just not the kids. That covers hospital ambulance dentist etc. I’ll be paying it coz nothing is free in this world. So if it’s possible I’ll get that tonight please type it out. It will help for school too n [sic] I’ll get birth certificates too.
(Emphasis added)
The first thing to note about the mother’s text message is that it is entirely consistent with the mother’s evidence that it was agreed between her and the father that the children would live with and be in her “care” in Sydney. Specifically, the text message expressed the intention of the mother to make long-term arrangements for the children including obtaining health insurance for them and enrolling them in school. It is entirely inconsistent with the father’s evidence that he only ever intended for the children to live with the mother for a matter of weeks until the conclusion of the CYFS and/or police investigation.
It is also to be noted that it is clear that the father did not sign the letter referred to above under pressure from the mother on 30 May 2016 after, according to the father’s evidence, “she prepared a letter on the library computers and demanded that I signed it then and there”. In that respect, there was no suggestion by the father that two such letters were created. It is also of note that the father’s evidence, as set out in his initial affidavit, refers to him preparing a letter in response to the mother’s request for her to be able to take health insurance out for the children. In his second affidavit, the father accepted that that request by the mother for him to write a letter was made by way of the text message sent on 1 June 2016, being two days after the meeting had occurred.
Therefore, I find that the father in fact signed only one letter indicating his consent for the children to travel with the mother to live with her in Sydney and to be in her primary care there. That letter was signed on or after 1 June 2016 and before the children left for Australia on 3 June 2016. For convenience, I will subsequently refer to this as “the father’s letter”. The father’s contention that he was placed under pressure by the mother to sign that letter at the meeting on 30 May 2016 is without evidentiary foundation.
As a result of that inconsistency, I prefer the mother’s evidence in respect to the meeting on 30 May 2016. This account, as I will discuss, is also consistent with the records of CYFS.
In the Central Authority’s Outline of Case document, it was contended that:
It was well known to all concerned that the consent to the children living with the mother in Australia was to cater for the situation where the children had been removed from the care of the father and his immediate family while the investigation was being carried out.
(Emphasis added)
I must respectfully disagree with that contention. In so doing I note that at approximately 6.20 pm on 30 May 2016, the father wrote a Facebook message to those members of his support group who had attended the meeting earlier that day. In that Facebook message he thanked the members for their support and for assisting himself, his mother and his two sisters. The father stated that “you made a huge impact in today’s meeting”. In the message, the father reported to those who attended the meeting:
A decision will be made officially out of the best interest for my babies so they don’t have to go thru [sic] the system any longer.[20]
[20] Mother’s affidavit filed 21 October 2016 at page 37.
(Emphasis added)
The reference to the children not going “through the system any longer” is entirely inconsistent with the Central Authority’s case that the father agreed for the children to be placed in the mother’s care only until such time as the investigation by CYFS and/or the police in New Zealand had concluded.
To further support his assertion that his agreement for the children to travel to Australia was only for the duration of the investigation, the father stated, at paragraph 28 of his second affidavit, the following:
My agreement to the children travelling to Australia with [the mother] was on the basis that they would be returned to me once the Child Youth and Family investigation was completed. That is made clear from [Ms F’s] record of the meeting that occurred on 31 May 2016. She records that:
[The father] also agreed that all the children can return with their mother to live in Australia. Although he was saddened that this was to happen he did not want anyone else to have his children, should they were [sic] unable to return to his care, after police investigation…
(Emphasis in original)
It can be accepted that there is a typographical error in the emphasised words and they should appropriately be read as “should they be unable to return to his care”. It is important to note, however, that in the paragraph that immediately follows in the report of Ms F,[21] it is stated:
[21] Affidavit of Ms G filed 2 November 2016 at page 67.
On Friday 2 July C, D and B flew out to Australia to live with their mother...
(Emphasis added)
It can be accepted that the reference to 2 July is incorrect and that the correct date was 3 June 2016. It is also significant that, in both of the paragraphs extracted from Ms F’s report, she referred to the fact that the children would “live with their mother” and, specifically, that they would “live with their mother in Australia”.
Contrary to the father’s assertion set out in paragraph 28 of his second affidavit, that Ms F was under a similar understanding as himself about the outcome of the meeting on 30 May 2016, subsequent emails sent by Ms F and a report which she provided to a meeting between CYFS and police shows that Ms F was in fact of a contrary opinion.
Under the summary of a “Tuituia Assessment” conducted by CYFS in relation to each child, it is reported that, at the meeting on 30 May 2016, “it was agreed between [the mother] and [the father] that all the children could live with their mother”.[22]
[22] Affidavit of Ms H filed 9 November 2016 at pages 77, 83 and 88.
Further, it is reported that, at the meeting on 30 May 2016, the “extended family” agreed that “[C], [B] and [D] would be better living with [the mother] in Australia, they had no concerns for [C], [D] and [B] to be living with their mother”.[23] It is to be noted that this report by CYFS is entirely consistent with the Facebook message sent by the father to the members of his support group on 30 May 2016.
[23] Ibid at page 96.
There is no mention in any of the CYFS reports or file notes of the children living with the mother only until the completion of investigations by CYFS and/or the police.
Moreover, it is clear that the reason why the CYFS investigation was concluded, and the case “closed”, was the fact that the children had moved to live with the mother in Australia. This is confirmed in an email sent by Ms F to the mother on 7 July 2016,[24] wherein Ms F says:
[24] Mother’s affidavit filed 21 October 2016 at page 41.
I am very sorry for not replying to you sooner.
This is to acknowledge and support [the mother] with the return of her three children [D], [C] and [B] back into her care. I was the social worker for these children while they were still living in NZ with their father, Nana and two aunties. Due to unforeseen circumstances, the children were removed from the care of their father, while an investigation by police was being made.
Before the completion of the police investigation [the mother] had come over to NZ to offer support and comfort to her children. It was during her time here, that the father of the children and [the mother] agreed for [D], [C] and [B] to go to Australia with their mother… to live.
I supported this move as I believe it was in the best interest of the children. All three children were wanting to go and live with their mother.
I wish them all the very best for the future.
(Emphasis added)
It is also of significance that the police investigation was completed in the context of CYFS making the decision to close its file as result of the children moving to live with the mother in Australia. This is confirmed in the following exchange of emails between Ms F and Detective Sergeant L, who was responsible for the police investigation.[25] By email dated 1 June 2016 Detective Sergeant L wrote:
[25] Affidavit of Ms G filed 2 November 2016 at pages 64-5.
Hi [Ms F],
I have this file. I see you have engaged with the family, does this include the Nan, Aunties and if so have they been cooperative to deal with?
If they are cooperating with you and there appears to be no issue with decisions made on mother [sic] taking the girls to Australia and [B] happy to live with his father.
There is no history recorded with police that causes me any concern. I would be happy to resolve this matter with no further action by police if you are happy with how things are being resolved for you. If you have a concern that there has been physical discipline I would be happy to complete a joint visit or we could do a cold visit ourselves with a reminder that physical discipline is not (no longer) permitted.
(Emphasis added)
Ms F replied to Detective Sergeant L:
Yes, the family have been very co-operative, since we first let them know why CYFS are involved.
I had a meeting on Monday which included the [the father’s] / family and the mother of the children… who came over from Sydney when she heard there was a meeting taking place on this day. Also in attendance was their support people about 20.
I have been informed by [the mother] that she is taking all 3 children back to Sydney with her. They leave tomorrow morning at 7am. [The father] has written a letter confirming that he agrees for the children to live with their mother in Sydney.
So we will be closing the file and will no longer remain involved. However I believe that a visit from police with a reminder that physical discipline is not acceptable would be of benefit to this family, should the children return at any time, even if it is for holidays.
(Emphasis added)
The reply from Ms F makes it clear that the reason the CYFS closed their file was because the father agreed “for the children to live with their mother in Sydney”.
Indeed, it is clear that CYFS would not have ceased their involvement with the family if the children had not moved to Australia. This is confirmed in an email sent by Ms F to the paternal aunt on 7 June 2016 cancelling a meeting that was to take place that day. In that email[26] Ms F states:
[26] Form 2 Application filed 8 September 2016 at page 29.
I have cancelled the meeting because the children are no longer here. If the children were still here and returning to your care I would have discussed a plan with you all, for their return and made some recommendations. I did let the police know that you were all co-operative with CYFS and that I was looking at the children returning to your care under a Family/Whanau Agreement.
(Emphasis added)
There is, with respect, no reasonable basis for the Central Authority’s contention that the email from Ms F indicated an intention on the part of the CYFS to return the children to the father’s care. The email is clearly expressed in terms of what would have happened had the children not moved to Australia to live with their mother. The meeting scheduled for 7 June 2016, which was cancelled, had been for the purpose of discussing arrangements for the parties’ eldest child, B, to return to live with the father. This was in circumstances where it had been anticipated that following the meeting on 30 May 2016 B was to remain in New Zealand and not go to Australia with the mother.
The purpose of that meeting is also confirmed in an email from Ms F to a Mr M which was sent to an email address ending “@ police.govt.nz”. Relevantly, that email[27] stated:
[27] Affidavit of Ms G filed 2 November 2016 at page 61.
What has transpired is that [the mother] is taking [D] and [C] back with her. She is here for 2 weeks. [The father] has agreed for the girls to go with their mother. [B] will remain here, as he apparently doesn’t want to go and live in [Australia] and wants to remain with dad. I am having another meeting with dad, aunties and grandmother on Tuesday to discuss further plans for the return of [B] in the home. Due to [B] being older and able to remove himself from the home, I am looking at entering a Whanau / family agreement whereby we will remain involved for another 3/6 months with the plan and to monitor how things are going.
(Emphasis added)
In circumstances where B subsequently left New Zealand with the mother and his two sisters, it was no longer necessary for the meeting on 7 June 2016 to take place. The evidence is quite clear that if it was intended that the children were to return to the care of the father then CYFS would have continued with the foreshadowed family agreement and plan for the children’s return and subsequent monitoring of the family by CYFS would take place.
The reports prepared by Ms F, as well as her email communications, satisfy me that, at the meeting on 30 May 2016, Ms F had formed the opinion that the father agreed for the children to live with the mother in Australia on an indefinite basis, and not simply for the duration of any investigation by CYFS and/or the police. Indeed, it is clear that Ms F based her actions in closing the file on that understanding. Ms F’s perceptions of the outcome of that meeting on 30 May 2016 are significant, being a person independent from both the mother and the father.
In summary, I do not accept that the father was placed under “duress” or pressure by the mother, or any other person, at the meeting on 30 May 2016. I am satisfied that the father agreed for the children to travel with the mother to live with her in Australia with her and to remain in her care on an indefinite basis. This was confirmed in writing by the father’s letter which he signed subsequent to 1 June 2016, and before 3 June 2016. I am satisfied that the father was not placed under “duress” or pressure by the mother, or any other person, to sign that letter. I am further satisfied that the father agreed for the children to move into the mother’s care and live with her in Australia because he believed it was in the best interests of the children “so they don’t have to go [through] the system any longer”. I am not satisfied that this arrangement was only for a limited period of time until the CYFS and/or police investigation concluded.
Did the change in the children’s geography result from them moving from the primary care of the father to the primary care of the mother?
I am satisfied that the father was well aware that his agreement for the children to move into the care of the mother meant that they would live with her in Australia. The father’s subjective understanding that this would occur is confirmed in the father’s letter to which I have previously referred.
The objective understanding that the children would move into the primary care of the mother and live with her in Australia is also confirmed in the CYFS report of the meeting on 30 May 2016. It is also confirmed in the email dated 7 July 2016 from Ms F to the mother and in the “Tuituia Assessment” completed by CYFS in which it is stated that the children are “no longer living in the care of [their] father, Nan and two aunties” and that they have “moved to live with [their] mother and [siblings] in Australia”.
Did the circumstances in which the change of geography occurred result in the children becoming habitually resident in Australia or, at least, ceasing to be habitually resident in New Zealand?
As previously noted, it is necessary to determine the children’s place of habitual residence as at the date of the alleged wrongful retention. At paragraph 4 of the New Zealand Central Authority’s application to the Australian Central Authority, it is alleged that the children “have been wrongfully retained in Australia since on or about 22 June 2016 when the police investigation was completed with no further action taken”.[28]
[28] Form 2 Application filed 8 September 2016 at page 16.
As brief as the time was between the date the children arrived in Australia on 3 June 2016 and the conclusion of the police investigation on 22 June 2016, I am satisfied that, in circumstances where it was intended that the children left New Zealand for the purpose of living with the mother in Australia, the steps taken by the mother were consistent with “her and her children establishing the centre of their lives here rather than in [New Zealand]”.[29]
[29] LK at 595[30].
In the mother’s text message to the father dated 6 July 2016,[30] the mother indicated that the following steps had, prior to that date, been taken to assimilate the children into their life in Australia:
…Kids are now under my care in Sydney, enrolled in schools and have a daily routine. [B’s] studies are going well as the Principal who is also his English teacher is helping him with special classes. He has spoken to [N School] of what he needs to work on. I have already paid for all their school fees including [B’s] special class. I have gotten them a tutor which comes over twice a week to help them with their homework, writing, reading and maths. I have gotten them Medicare cards n [sic] private health funds which will help them if anything happens to them…
[30] Mother’s affidavit filed 21 October 2016 at page 45.
That text message was sent in response to a text message sent by the father to the mother on 5 July 2016 demanding that the children be returned to the father’s care as a result of him receiving confirmation “from both [CYFS] & police of the charges have been dropped and case is now closed”.[31]
[31] Ibid at page 44.
It goes without saying that the extent to which the children could assimilate into life in Australia in a period of less than a month would be far less than the extent to which they had been assimilated into life in New Zealand; where until 3 June 2016, they had spent their entire lives. However, in circumstances where a decision had been made to place the children in the care of the mother and to live with her in Australia, the steps that the mother took to enrol the children in school, attend to payment of their school fees and arrange a tutor together with attending to the payment of the children’s health insurance was, in my view, sufficient for them to become habitually resident in Australia.
If I am incorrect in respect to the children being habitually resident in Australia as at the date of the alleged wrongful retention, I nonetheless find that as at 4 June 2016, being the day after the children left New Zealand, they ceased to be habitually resident in New Zealand. In arriving at that conclusion, I note that on 24 May 2016 the children had been removed from the house where they lived with the father, the paternal grandmother and paternal aunts and on 27 May 2016 they were removed from the care of the father. However, for an unexplained reason, the father’s letter notes that the children moved into the care of the mother on 6 June 2016.
Further, the “Tuituia Assessment” completed by CYFS, which I have referred to earlier, stated that the children are “no longer living in the care of [their] father, Nan and two aunties” and that they have “moved to live with [their] mother and [siblings] in Australia”.
In circumstances where the children had ceased to be in the care of the father and had changed geography to Australia on 3 June 2016, as result of moving into the primary care of the mother, the children ceased to be habitually resident in New Zealand on 4 June 2016.
In summary, for the above reasons, I find that as at 22 June 2016 the children were not habitually resident in New Zealand. Accordingly, I find that the Regulations do not apply.
Despite arriving at that conclusion, I will continue to consider the remaining issues that I have earlier identified.
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.[32]
[32] 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.
(Emphasis added)
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. 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 children to remain in Australia with the mother to or alternatively, to identify the means by which the specific period could be identified. In these proceedings the father asserted that the wrongful retention occurred “on or about 22 June 2016 when the police investigation was completed with no further action taken”. The basis upon which the father asserts 22 June 2016 to be the relevant date of the children’s wrongful retention is from his receipt of the following letter from Detective Sergeant L:[33]
Dear [the father],
Re: Assault Allegation/Police File Reference: …
The police received a report of concern which led to your three children being interviewed. Two of the children disclosed being hit by you and other family members residing at the same address as you and the children.
We have completed our investigation and I am satisfied that physical discipline has occurred in the past against the children. I take into account it was not serious and did not result in an injury.
I appreciate you and your family member’s honesty and cooperation with the investigation. I understand and have a view that you are all aware that physical discipline is not permitted as a punishment.
No further action will be taken by police and this matter will be recorded and filed within the police national intelligence computer system. Child Youth and Family, Lower Hutt branch have been advised that police are not taking any further action.
If you have any further questions please do not hesitate to contact me.
[33] Form 2 Application filed 8 September 2016 at page 32.
As I have indicated, the evidence presented by the Central Authority has failed to persuade me that such an agreement existed between the parties. Rather, I have found that the agreement was for the children to live with the mother in Australia and remain in her care on an indefinite basis.
That finding is also relevant to the issue as to whether the children have been wrongfully retained in Australia. Section 97 of the Care of Children Act 2004 (NZ) relevantly provides:
Section 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.
Despite the children having been removed from the care of the father on 27 May 2016, it has not been in dispute that the father has, at all times, had rights of custody in respect to C and D. 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 3 June 2016, in Australia.
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.
If I am incorrect in reaching that conclusion, I nonetheless note that the father has given evidence of two separate events that he contends give rise to the children being wrongfully retained. The first is the notification by Detective Sergeant L of the completion of the police investigation in the letter set out above. The second event is as set out at paragraph 28 of the father’s second affidavit. At that paragraph the father states that:
My agreement to the children travelling to Australia with [the mother] was on the basis that they would be returned to me once the Child Youth and Family Investigation was completed.
(Emphasis added)
The reference to this second alternative is not merely a question of possible misuse of nomenclature. The letter from Detective Sergeant L dated 22 June 2016 appears to form the basis of the Central Authority’s contention in their Outline of Case document that:
The children’s living circumstances have been thoroughly investigated by Child Youth and Family and by the Police, and the investigation has been closed without any action being taken against the father or his family.
That contention is, with respect, not based upon a reasonable assessment of the evidence. The report by Ms F of the meeting that occurred on 30 May 2016 confirms that, while CYFS and the police cooperate in respect to investigating allegations of child abuse, the processes undertaken by the two agencies are separate. Ms F recorded that she explained to those present at the meeting that the process for CYFS to determine whether children will be returned home would “take up to 6 weeks”. In that respect Ms F stated:
I have not closed the possibility of the children returning home, but I will need to wait to see the outcome to the police investigation.
It is quite clear that, while the CYFS investigation would be informed by the outcome of the police investigation, the resolution of the police investigation did not result in the CYFS investigation being “completed”.
Accordingly, even if I am incorrect in finding that, consistent with his rights of custody, the father agreed for the children to be cared for and live with the mother in Australia, the Central Authority has failed to “point specifically to the event” which constitutes the wrongful retention of the children in Australia by the mother.
Consideration: Defences
As previously noted, regulation 16(3) sets out several exceptions to the obligation on the Court to make an order for the return of the child. In considering any “defences” argued pursuant to regulation 16(3), regulation 16(4) requires the Court to:
…take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
Consent
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).
In order to establish the defence of consent, the mother must establish that the father consented to the children being retained in Australia.
In Wenceslas at 81,559,[34] 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.
[34] at [262].
The Full Court in Wenceslas further said at 81,560:[35]
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 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.
[35] at [264].
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 while [the other party] made preparations … [may demonstrate] a course of conduct from which [the aggrieved party’s] consent could be inferred”.[36]
[36] Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 at 189.
Consent does not imply that “the person concerned is happy or content with the outcome that has been agreed”.[37]
[37] 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.
Consent once provided and acted upon cannot be taken away. Specifically in Re K (Abduction: Consent) (supra),[38] Hale J stated that consent could not be taken away by the aggrieved party “subsequently thinking better of it”.
[38] at 218.
In a similar context, in Regino & Regino,[39] Lindenmayer J concluded on the facts before him that:
I am quite satisfied, on the balance of probabilities that, before the wife 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 wife’s retention of the child in Australia after the husband changed his mind and demanded the child’s return.
[39] (1995) FLC 92-587 at 81,820.
In these proceedings I am satisfied that the father’s consent to the children moving into the care of the mother and travelling with her to live with her in Australia was given at the meeting on 30 May 2016 and was subsequently confirmed in writing in what I have described as the father’s letter. The father’s consent was also subsequently confirmed by his conduct, and in particular by way of the Facebook message he sent to the members of his support group who attended the meeting with him on 30 May 2016. As noted, that Facebook message confirmed that the purpose of the agreement entered into between the father and the mother was to avoid the children having to “go [through] the system any longer”. That Facebook message contradicts the Central Authority’s contention that the consent was for the mother to provide only temporary residence for the children pending the completion of the CYFS and/or police investigations. Further, the mother’s evidence in respect to the nature of the farewell by the father and the paternal grandmother at the airport when the mother and the children departed New Zealand for Australia was not challenged and was consistent with the children departing on an indefinite basis.
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 moving into her care and living with her in Australia on an indefinite basis.
In terms of the reasonableness of the mother drawing that inference, I note that a similar inference was drawn by Ms F. In that respect I refer to the email communications extracted above in the context of my consideration of habitual residence as well as the reports of Ms F and CYFS.
Insofar as the text message sent by the father to the mother on 5 July 2016 can be construed as notification of his withdrawal of consent for the children to live in Australia, that text message was sent after the mother had acted upon the father’s consent. Those actions included purchasing airline tickets for the children to travel from New Zealand to Australia as well as taking the steps to which I have referred which includes enrolling the children into school, paying their school fees, arranging tutoring and paying for their private health insurance.
As that consent has been acted upon by the mother, it could not thereafter be withdrawn by the father.
Was the father’s consent based on “duress” or pressure from the mother and the CYFS and police investigations?
It is clear that one parent deceiving the other of the true purpose of a child’s travel may vitiate consent.
In Re B (A Minor) (Abduction),[40] Waite LJ said:
As for the issue of consent, the question whether a purported consent to the child's removal obtained from the aggrieved parent was or was not a valid consent is similarly to be determined according to the circumstances of each case. The only starting-point that can be stated with reasonable certainty is that the courts of the requested State are unlikely to regard as valid a consent that has been obtained through a calculated and deliberate fraud on the part of the absconding parent. That applies in my judgment whatever the purpose for which the consent is relied on -- whether it be to nullify what would otherwise be considered a wrongful breach of rights of custody for the purposes of Art 3, or as a consent of the kind that is expressly referred to in Art. 13(a).
[40] [1994] 2 FLR 249 at 261.
In these proceedings, the Central Authority did not argue that the father’s consent had been vitiated as result of fraud or deceit. Rather, it was argued in the Central Authority’s Outline of Case document that:
[T]he father was not aware of his rights and buckled under the pressure of the investigation and the attitude adopted by the mother.
I have rejected the contention that the mother placed pressure on the father to sign a letter on 30 May 2016 confirming his consent to the children travelling to Australia to live with the mother. As noted, the father’s letter was provided on or after 1 June 2016, being at least two days after the meeting on 30 May 2016. Moreover, it was not provided in circumstances that could reasonably be considered to be a situation of duress or undue pressure.
The submission that the father’s letter was signed against the background of “the attitude adopted by the mother” was said to be reflected in the intention illustrated in her text messages to the father prior to her leaving Australia with the children. At page 29 of the mother’s affidavit filed 21 October 2016, the mother said to the father “I’m getting them [the children]” and “you’ve had them let me have them for now please”. These text messages were sent by the mother in the context of her being advised that her children had been removed from the care of the father, the paternal grandmother and paternal aunts by government authorities. The text messages cannot, in my view, reasonably be construed as evidence of the mother placing the father in a situation of duress or undue pressure.
Moreover, any such communication needs to be considered in the context of events which subsequently occurred, including where the decision in respect to the children moving into the mother’s care and living with her in Australia was not made until the meeting on 30 May 2016. As previously noted, the father had approximately twenty support persons with him at that meeting.
It is reasonable to assume that the events in late May and early June 2016 were a stressful time for the father. However, there is no suggestion that the police or CYFS acted other than entirely professionally in their dealings with the father and the paternal family. Indeed, to ensure that the views of the family were properly represented in determining the arrangements for the children, Ms F invited the paternal family to bring support persons to the meeting on 30 May 2016. The fact that CYFS permitted twenty such support persons to be in attendance was, if anything, an indication of their professional conduct.
In summary, I am satisfied that the father’s consent to the children moving into the care of the mother and living with her in Australia on an indefinite basis was “real” and “unequivocal”. I am not satisfied that the father’s consent was vitiated by duress, undue pressure or any other unconscionable conduct on the part of the mother, or by CYFS or the police.
In arriving at that conclusion, it is not to suggest that the father was “happy or content with the outcome that has been agreed”.[41] However, in the circumstances of this case, this does not negate the fact that his consent was provided.
[41] 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.
Accordingly, had it been found that the mother wrongfully retained the children in Australia, the mother would have established the defence of consent set out in regulation 16(3)(a)(ii).
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 children 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 these proceedings I note that it has not been suggested that there is a grave risk of the children being exposed to physical or psychological harm should the children return to the father’s care in New Zealand. On the basis of the authorities to which I have referred, I cannot, separately from that risk, consider whether the children would be placed in an intolerable situation.
Accordingly, had it been found that the mother wrongfully retained the children in Australia, the mother would not have made out the defence raised pursuant to regulation 16(3)(b) on the evidence put before the Court as at the final hearing.
The children’s objections
Regulation 16(3)(c) provides that an exception to the obligation on the Court to make an order for the return of a child, is where:
(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;
In De L v Director-General, Department of Community Services (NSW),[42] the majority of the High Court said:
[42] (1996) 187 CLR 640 at 661.
[I]f a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child’s return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the “discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]” enable it to be said that a particular consideration is extraneous. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.
(Footnotes omitted)
In Re M (Children) (Abduction: Child’s Objections: Joinder of Children as Parties to Appeal),[43] (“Re M (Children)”) Black LJ stated that in considering the exception, where a child objects to being returned to the country of habitual residence, the Court is required to separate its consideration into two stages. The first stage is described as the “gateway stage” and the second stage is described as the “discretion stage”. In that respect her Honour continued:
The gateway stage has two parts in that it has to be established that (a) the child objects to being returned and (b) the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views. If the gateway elements are not established, the court is bound to return the child in accordance with Article 12. If the gateway elements are established, the court may return him or her but is not obliged so to do.
[43] [2015] EWCA Civ 26 at [18].
On the facts of this case, it is somewhat artificial to seek to distinguish between the objection of the children to being returned to New Zealand and their objection to being returned to their former living arrangements. The two factors are, in my view, “so inevitably and inextricably linked that they cannot be separated”.[44] It was accepted by the parties that, in the event of the Court making an order for the children to return to New Zealand, they would return to their former living arrangements with the father, paternal grandmother and paternal aunts. However, returning to that living arrangement is the very nub of the children’s objection to a return to New Zealand. This was summed up in the Hague Report (as communicated by B): “I just want a place where there is no smacking”.[45]
[44] Re R (Child Abduction: Acquiescence) (1995) 1 FLR 716 referred to in De Lewinski and Legal Aid Commission of New South Wales & Director-General, New South Wales Department of Community Services (1997) FLC 92-737 at 83,939.
[45] at paragraph 23.
The questions as to whether a child objects to being returned to their country of origin, and whether that child has attained an age and degree of maturity at which it is appropriate to take account of the child’s view, are questions of fact.[46]
[46] Colak & Viduka (2016) FLC 93-707 at 81,387 at [37].
In Re M (Children),[47] Black LJ expressed the view that the consideration at the gateway stage is relatively simple. Her Honour said that:
[T]he position should now be, in my view, that the gateway stage is confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. Sub-tests and technicality of all sorts should be avoided.
[47] at [69].
As noted, on 4 November 2016, a Hague Report was requested by consent to address whether the children:
·object to being returned to New Zealand;
·if so, whether the children’s objections shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes; and,
·whether the children have attained an age, and a degree of maturity at which it is appropriate to take into account their views.
I will address each of those issues and, in taking that approach, I will proceed on the basis of the ordinary meaning of the word “object”.[48]
[48] per De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640.
Do the children object to being returned to New Zealand?
I accept the submission by counsel for the Central Authority that the Hague Report prepared for the purposes of these proceedings is but one piece of evidence that the Court should consider in the context of identifying the views of the children. Nevertheless, in circumstances where the mother and the father give different accounts of the children’s views, I place significant weight on the Hague Report.
I note that in the Hague Report, the report writer observed that the children are still in the “honeymoon phase” of living with their mother in Australia.[49] Nevertheless, it is apparent that the report writer had regard to that fact in reporting on the views expressed by the children and in arriving at her conclusions.
[49] at paragraph 24.
In the Hague Report each of the children is identified as having expressed an objection to being returned to New Zealand. As I have previously noted, the views of the children were reported as being summed up in the words of B who said “I just want a place where there is no smacking”.
It is also to be noted, however, that the Hague Report referred to the fact D expressed some negative comments about her father “which sounded more as if they derive from overheard adult conversations”.[50] In that respect, the report writer noted that D had said “Dad lied. I think he will lie to the Court. He said my mum didn’t ask permission for us to go to Australia”.
[50] at paragraph 8.
In that context, counsel for the Central Authority referred to the English case of Z v Z (Abduction: Children’s Views)[2005] EWCA Civ 1012 wherein Lord Thorpe said that:
… If the court should come to the conclusion that the child’s views have been influenced by some other person, e.g. the abducting parent, or that the objection to the return is because of a wish to remain with the abducting parent, then it is probable that little or no weight will be given to those views. Any other approach would be to drive a coach and horses through the primary scheme of the Hague Convention.
Accordingly, I attach no weight to the view expressed by D that her father has lied and “will lie to the Court”. I note, however, that the report writer stated that other concerns which were raised by D “sounded more genuinely based on her own experiences”.[51] Those concerns were reported as being:[52]
[T]hey [the paternal grandmother and paternal aunts] slap me. Dad doesn’t because I’m the baby. He calls me “princess”. He calls the others [her siblings] “fat pig” and “fish-head”.
[51] at paragraph 8.
[52] at paragraph 7.
The report writer also noted that, notwithstanding the fact that D had said that her father did not slap her, she then said:
One day he [her father] slapped me because I dropped my earing. It was a big slap. Everyone was looking. It hurt. There was a red hand mark. It was at the fish and chip shop. I told [CYFS] this. Dad slaps my brother with a belt sometimes.
The report writer summarised C’s concerns about returning to New Zealand in the following terms:
19. [C] had a number of things to say about living with her grandmother, aunties and father. She described her “Nan” and aunties as “very supportive” but also said “they get angry and yell at us. They smack us every day. If we were really naughty, on the head; if not really naughty, on the arm with something or their hand”. She said that her father had not hurt hit her since she was four years old but that he had not protected her and her siblings from “the smacking”. She also said that her father had not looked after them, sometimes would not give them dinner, that they “would never see him” and that twice he had forgotten to pick her up from school. She said she is angry with him for “hitting my Mum; more than once. She told us.”
Having regard to the statement referred to above of Lord Thorpe in Z v Z (Abduction: Children’s Views)(supra), I place little weight on C’s account of the conversation that she had with her mother in which she reports that the mother had informed her that the father hit the mother. However, the reference by C to the father “hitting” the mother does not justify dismissing the balance of her concerns as set out in the Hague Report.
In the context of the concerns expressed by both D and C, the report writer opined:[53]
The consistency with which the children have reiterated the allegations to a number of different people lends weight to their veracity.
[53] at paragraph 23.
In summary, having regard to the children’s ages, I accept that the children’s views in objecting to the prospect of being returned to New Zealand are genuinely held. I further accept that this objection is based on reasonable grounds in circumstances where they would return to live with the father, the paternal grandmother and the paternal aunts.
Do the children’s objections show a strength of feeling beyond the mere expression of a preference or of ordinary wishes?
In terms of the “strength of feeling” of the children about the prospect of returning to New Zealand, the Hague Report notes:
23. The objections about returning are based on the children’s strongly expressed, albeit ambivalent, feelings about their father, paternal grandmother and aunts and the allegations that they have made about what these people, particularly the grandmother and aunts, have done to them. The consistency with which the children have reiterated the allegations to a number of different people lends weight to their veracity. These are gentle, compliant, polite children so, while the content of what they say is strong and beyond the mere expression of a preference or of ordinary wishes, the manner of their expression is not…
The report writer’s observations that the “manner” in which the children expressed their objection to returning to New Zealand needs to be considered in the context of her observation that the children are gentle, compliant, and polite. This is consistent with the children’s school reports which are attached to the father’s second affidavit. C’s end of year school report for 2015 notes that she is “a well mannered and personable student”. D’s end of year school report for 2015 observes that she “always wants to help others”.
As previously noted, regulation 16(4) requires the Court, in giving consideration to the exceptions set out in regulation 16(3), to take into account “any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention”.
In these proceedings I have found that, immediately prior to the alleged wrongful retention, the children were habitually resident in Australia. Nonetheless, it is appropriate that I take into account information relating to the social background of the children as provided by the competent authority in New Zealand. Specifically, I have had regard to that background for the purposes of evaluating the strength of the feelings communicated by the children.
Documentation provided by CFYS includes evidence that the children had been living in a household in New Zealand where they were frequently the subject of physical discipline. Specifically, the documentation contains a number of reports of the children expressing concern regarding the extent to which they have been the subject of physical discipline. This includes the following:
a)In her report of her interview with C on 24 May 2016,[54] Ms F recorded that C stated:
[54] Affidavit of Ms G filed 2 November 2016 at pages 45-6.
… [C] does fear going home. She is hit by mostly her [sic] aunties and Nan. Dad used to hit us when we were little, but he doesn’t any more.
…
[C] stated when Nan hits her and her siblings she uses a wooden spoon or spatula. The aunties use a jandal.
…
They [the children] hit often [sic], it has been happening for a while. After they hit their devices are taken off them (cellphones), so they can’t contact anyone.
b)In her report of her interview with D on 24 May 2016,[55] Ms F states that D said:
[55] Ibid at page 47.
When asked if she is hit, [D] stated sometimes by Nan and aunty [Ms O]. Sometimes aunty [Ms P] hits me for no reason – uses a belt or jandal. No one tries to stop her. I sometimes stay in my dad’s room.
c)In the Specialist Child Witness Interview Report undertaken on behalf of New Zealand police,[56] the following aspects of the report of the interview with C are of relevance:
[56] Ibid at pages 56-7.
When the Jandal broke
At about 7 – 8 pm they were in the lounge of their home … and her and her sibling [D] and [B] were playing with the Jandal and it broke.
Their Aunt [Ms P] was watching TV.
[D] showed nan the broken jandal and it was her favourite and she became angry.
She told them to come into the lounge and sit down.
They sat on the floor her with her legs crossed as did [B]. [D] was sitting on her knees.
Nan told them to come closer.
[D] was crying and saying that she didn’t want to get hit.
Her nan said in a really really angry voice. She is hard to understand when she gets like this because she speaks in [another language].
Her nan told them to hold their arms out and she hit them hard with the jandal.
Her brother was the first to get hit, her next and then [D].
They each got one hit.
Her and [B] had only a t shirt on and they were hit above the elbow on the skin (indicates right arm) [D] held her arm back because she didn’t want to get hit. She had a long sleeve on. She also got hit.
She and her brother were quiet because they didn’t want to get hit anymore.
They said sorry and went up to their room.
They told [D] to stop crying as she had a sleeve on and they got hit on the bare skin.
There were no marks on her and it wasn’t that bad.
…
Hit on the face with the jandal
She can’t remember how old she was. She had been chatting back to auntie [Ms O] and she slammed the door.
Nan called her in and told her to sit down
Nan told her to come closer.
She was sitting with her legs out in front
Nan told her not to talk back to Aunty and then told her sister [D] to get the jandal.
[D] did that and she can’t remember which Jandal [D] got.
Nan held it and pointed it at her.
Nan slapped her across the face. [C] cried.
Indicates left cheek.
She was hit 3 times in the face and told not to do it again.
[C] said she was sorry
She was about 10…
…
The hardest Jandal is the plastic Jandal
It doesn’t bend and it is black and grey.
…
Nan does the worst because she uses stuff to hit.
Auntie [Ms O] hits the most and uses her hand.
d)The Specialist Child Witness Interview Report also noted that “[D] was quite random with her information” but nonetheless disclosed the following:
Nanna hits us with a jandal when we are naughty. Nanna gets the jandal from the shoe area. Nanna hits us – [D], [C] and [B].
Aunties hit with jandels or use hands to slap. All of us.
One time Nanna told me to get in the shower and I said no. Nanna slapped me with jandel [sic]. I was on the floor. Aunty dragged me by the feet to the shower. Aunty slapped me.
Dad slaps us. Last time yesterday at Fish and Chip shop in [Suburb Q]. Dad slapped me on my but [sic] because I stopped to pick up something.
Dad slapped me and my brother with a belt. Can’t remember when this happened. Dad used black belt that he uses to hold pants up. Wrapped it around his hand then whipped us with it.
D’s young age and the context in which her remarks were identified as being “random” need to be taken into consideration in assessing the weight of her evidence in respect to the extent to which she has been the subject of physical discipline. Nevertheless, having interviewed the children, the report writer noted that “the consistency with which the children have reiterated the allegations to a number of different people lends weight to their veracity”.
I note that the father has disputed that he physically disciplined the children and that he specifically denies hitting the children with a belt as he is of a large frame and does not wear a belt. The father has further indicated that the paternal grandmother and aunts no longer physically discipline the children.
Ultimately, it is unnecessary in these proceedings to make specific findings as to the nature of or extent to which the children have been subject to physical discipline. I accept, however, that the children have been the subject of physical discipline and that that has influenced the extent to which they object to being returned to New Zealand.
The circumstances giving rise to the children’s objection to return to New Zealand could reasonably be expected to give rise to a strength of feeling beyond the mere expression of a preference or of ordinary wishes. Despite the manner in which they have expressed that feeling, I accept that the children’s strength of feeling is one that satisfies the requirements of regulation 16(3)(c)(ii).
Have the children attained an age, and a degree of maturity at which it is appropriate to take into account their views?
While noting that the children are still in a “honeymoon phase” in relation to living with the mother in Australia, and accordingly are “probably less able to view the option of continuing to live with her with as much objectivity”, the report writer observed that they nonetheless “display a degree of maturity such that weight should be given to their views”.
In making that observation, the report writer noted that, given her age, D’s views should be given “less” weight “than her older siblings”.
Nevertheless, in arriving at her conclusion, the report writer noted that the children are:
…all thoughtful, observant, intelligent children who have the ability to perceive things from different angles, to put themselves in the shoes of others and to juggle in their minds contradictory but coexisting concepts and realities. These are signs of maturity.
I accept the validity of the Hague Report’s findings and the opinions expressed by the report writer. Accordingly, I accept that the children have attained an age, and a degree of maturity, at which it is appropriate to take their views into account.
Therefore, had it been found that the mother wrongfully retained the children in Australia,, I would have found that the mother had established the defence as set out in regulation 16(3)(c).
Exercise of discretion
In H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574, 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.
I will refer to those factors which I consider to be most relevant to the exercise of my discretion in these proceedings.
In terms of the comparative suitability of the forum to determine the child’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.
However, I am not in these proceedings in a position to determine the likely outcome of any such substantive proceedings.
The consequence of acquiescing 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 would need to be resolved in this Court. As I have found that the children are now habitually resident in Australia, this outcome is not inappropriate.
In this case it has not been suggested by either party that, in the event of the Court ordering that the children be returned to New Zealand, the mother would return to New Zealand with them. Each party has presented their respective cases on the assumption that that would not occur.
The potential emotional effect upon the children of an immediate return order is the most significant factor that I have had regard to in the exercise of my discretion.
In circumstances where I have found that the children’s objection to being returned to New Zealand is entirely understandable and reasonable, to require the children to return to New Zealand, in those circumstances, could reasonably be expected to cause the children emotional distress.
Moreover, unless the mother compelled B to return with the children to New Zealand, the siblings would become separated. This is significant in circumstances where the Hague Report notes the children “are a close and supportive sibling group”.
The “hope and expectation” of the father that, in the event of the Court ordering the return of the children, the mother would compel B to return to New Zealand with his siblings is, with respect, unreasonable. To do so, would ignore the rights of B who, being aged 14, has expressed a clear objection to returning to New Zealand and a desire to live in a place “where there is no smacking”.
In those circumstances, and in circumstances where it is acknowledged by the parties that the father does not have any rights of custody in respect to B, it is inappropriate in my view to prejudge the mother’s potential refusal, or inaction, to compel B to return to New Zealand with his siblings. Specifically, it is inappropriate to equate any such refusal to those cases where the courts have judged the actions of the parent, in refusing to accompany a child back to the country of their habitual residence, to be designed to thwart the operation of the Convention.[57]
[57] In that respect counsel for the Central Authority referred to Re C (Minor: Abduction: Rights of Custody Abroad) [1989] 1 FLR 403.
Accordingly, in considering the exercise of my discretion, I do not make any assumptions that, in the event of the Court ordering the return of the children, the mother would compel B to return with his siblings. In those circumstances there is a real possibility that the sibling group would become separated. This could also reasonably be expected to have an adverse emotional impact on the children.
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.
In this matter the father asserted that the obligation of the mother to return the children to New Zealand arose when he was notified by the New Zealand police that neither he nor the paternal grandmother and aunts would be the subject of criminal charges. However it was also asserted by the father that the obligation arose at the completion of the CYFS investigation. As noted, CYFS did not conclude their investigation, but rather closed their file, as a result of the children moving into the mother’s care and living with her in Australia.
In my view these competing contentions can appropriately be considered in the context of any substantive parenting proceedings. 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.
Finally, I note that an order for the immediate return of the children would result in the children being returned to live with the father, paternal grandmother and paternal aunts in circumstances where CYFS have closed their file in respect to the family and, consequently, the family have not entered into a family agreement or developed a plan with CYFS for CYFS to continue to engage with the paternal family. As previously noted, these steps had clearly been contemplated by CYFS during their investigations. An order for the immediate return of the children to New Zealand would result in the children being returned to live with the father, paternal grandmother and aunts in circumstances where there is no such family plan in place or ongoing engagement with CYFS.
Conclusion and Orders
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 defences set out in sub regulations 16(3)(a)(ii) and (c) to have been established. I would have also declined to exercise my discretion to order the return of the children.
Accordingly, for all of the reasons set out above, I will dismiss the Central Authority’s application.
I certify that the preceding two hundred and thirty-seven (237) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 2 February 2017.
Associate:
Date: 2 February 2017
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