STATE CENRAL AUTHORITY & TYLER

[2013] FamCA 100

FAMILY COURT OF AUSTRALIA

STATE CENRAL AUTHORITY & TYLER [2013] FamCA 100

FAMILY LAW - CHILD ABDUCTION – Hague Convention – Where the child was habitually resident in New Zealand – Where the child has been wrongfully retained in Australia by the Mother – Where there are no exceptions to a return order established

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPLICANT: State Central Authority; Secretary to the Department of Human Services

RESPONDENT: Ms Tyler

FILE NUMBER: MLC 11839 of 2012

DATE DELIVERED: 25 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Kent J

HEARING DATE: 25 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Porritt

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. That there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the applicant engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

   Exhibit “A”

3. THAT the child H born … April 2008 (‘the child’) be returned to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1989 within 14 days of this order.

4. That paragraph 3 of the order made on 24 December 2012 be discharged and the Registry release the child’s passport to the respondent mother.

5. That the respondent purchase a one way ticket to enable the child’s return pursuant to paragraph 1 and provide the applicant with a copy of the e-ticket or itinerary of the flight four days prior to the intended departure.

6. That paragraph 2 of the orders made on 24 December 2012 be discharged and the Australian Federal Police remove the child’s name from the Airport Watch List immediately prior to the child’s return to New Zealand in accordance with paragraph 1.

7. That liberty is reserved to the parties to apply urgently in relation to the implementation of this order.

8. That all extant applications be otherwise dismissed.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11839 of 2012

State Central Authority; Secretary to the Department of Human Services 

Applicant

And

Ms Tyler

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 21 December 2012, the Secretary to the Department of Human Services in the capacity of State Central Authority applied for orders with respect to the child H born in April 2008, (“the child”) including a return order pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The requesting Applicant under the Regulations is Mr Crisp, the Father of the subject child and the Respondent to the Application is the child’s Mother, Ms Tyler.

2. The requesting Applicant Father and the Respondent Mother were both born in New Zealand and commenced a relationship in New Zealand in about 2007. As already noted, the child was born in April 2008. The parents separated in about July 2008 although after that separation date, it would seem they have had what the Father would describe as an “on-off” relationship. It appears that in about 2009 the maternal grandparents and other maternal relatives re-located from New Zealand to Australia. Thus it was that in 2009 and 2010, the child, with her Mother, made visits to Australia for holiday periods of some weeks.

3. On the Father’s case, in 2010 he had some concerns about the arrangements for the child in terms of travel to and from New Zealand to Australia and that culminated  in the making of an Order by the New Zealand Family Court under the Care of Children Act 2004  (New Zealand) on 14 July 2010. Relevantly, that Order provided for the parents to have essentially a shared care arrangement for the child on a rotating four day type roster and also the Order recorded that the parties agreed that New Zealand was the country of the child’s habitual residence.

4. In 2012, it seems the parties agreed that the Mother could bring the child to Australia for another visit, albeit this time on a more extended basis. On the Father’s case, what was agreed was that the child would come to Australia for about four months. The Mother suggested it was more like six months. In any event, on 17 March 2012, pursuant to that agreement, the child and the Mother travelled to Australia. On the Father’s case he thereafter, at the end of about four months, was seeking from the Mother indications of when she and the child would return to New Zealand but ultimately, on about 30 September 2012, the Mother advised the Father of her intention to remain in Australia and not to return to New Zealand.

5. I note that in her affidavit filed in response to the Application on 4 February 2013, the Mother confirms that the agreement was for the child to remain in Australia she says for a period of six months but she does not suggest at any stage the Father consented to any permanent move to Australia nor does she suggest that the Father acquiesced in her decision made when she was in Australia to keep herself and the child in Australia as communicated to the Father on or about the 30^th of September 2012.

6. I am satisfied on the evidence of Katherine Lellman, a barrister and solicitor of New Zealand, and also by reference to the parenting orders to which I have briefly referred, that the child’s country of habitual residence has at all material times been New Zealand.

7. I am satisfied that the Father has rights of custody under New Zealand law and would have exercised those rights but for the child’s retention in Australia.

8. I am satisfied that the Mother’s retention of the child in Australia is in breach of those rights of custody which would otherwise have been exercised by the Father.

9. I am satisfied that the Applicant demonstrates all of the relevant elements under the Regulations for the making of a return order. Specifically, as already noted, the child is now 4 years of age and is thus a child under the age of 16 within the meaning of the relevant regulation. I have found that she was habitually resident in New Zealand, a Convention country, immediately before her retention in Australia.

10. I am satisfied that the Father, as noted, had rights of custody in relation to the child under the law of New Zealand and that her retention in Australia is in breach of those rights of custody and that at the time of retention, the Father was exercising those rights in the sense that under the law of New Zealand, he had the right to determine, albeit jointly with the Mother, where the child would live. The Mother’s unilateral decision to retain the child therefore, albeit in exercise of her rights, was in breach of the Father’s rights.

11. The Respondent Mother bears the onus of establishing an exception to a return order being made in these circumstances pursuant to regulation 16, sub-regulation 3 of the relevant regulations. She agitates in material to the effect that the Father suffers diabetes which, in turn, she says causes him to act inappropriately so far as physical discipline concerning the child is concerned and what she says is emotional abuse. Moreover, in that context, the Mother seeks to agitate issues which might generically be termed “safety” issues with respect to the child but as confirmed by the Respondent Mother in the hearing this morning, all of the issues she agitates broadly in her material in response,  were matters which existed prior to her consenting to the Order that was made in New Zealand on 14 July 2010. That is, she then consented to an Order that saw the child’s care being shared between the parents. I am not satisfied on the material before me that the Mother establishes any relevant exception under the Regulation to the making of a return order. I therefore make Orders in terms of the draft orders requested by the Applicant and now initialled by me and placed with the file.

12. I note that in the course of the hearing, the Mother confirmed that if a return order was made it was her intention to return with the child to New Zealand. As I have explained to the Mother, or attempted to explain, these proceedings are not parenting orders in the best interests sense, these proceedings are about determining the appropriate forum in which such orders can be determined. For the above reasons I am satisfied that the courts of New Zealand are the appropriate forum for determining any further parenting issues between the parents concerning the child’s parenting arrangements.

13. The dictates of the Convention are such that the fourteen days provided for in the Order for the Mother to arrange for the child’s return are appropriate. I therefore make Orders in terms of the draft, the only correction being to the spelling of the child’s Christian name, as noted by me on the draft Orders.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 25 February 2013.

Associate:     

Date:  25 February 2013