State Central Authority and Jiu

[2007] FamCA 742

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & JIU [2007] FamCA 742

FAMILY LAW – CHILD ABDUCTION - HAGUE CONVENTION – Habitual residence – Return of child to New Zealand – Acquiescence

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

Re J (a minor) (1990) 3 WLR 949

APPLICANT: STATE CENTRAL AUTHORITY SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES

RESPONDENT: MR JIU

FILE NUMBER: MLC 6267 of 2007

DATE DELIVERED: 25 July 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: CRONIN J

HEARING DATE: 23 JULY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS BROOKS

SOLICITOR FOR THE APPLICANT: VICTORIAN GOVERNMENT SOLICITOR

COUNSEL FOR THE RESPONDENT: MS PHELAN

SOLICITOR FOR THE RESPONDENT: OAKFAIR LAWYERS

Orders

1. That G born in February 2004 be forthwith returned to New Zealand.

2. That there be liberty to either party to apply for directions necessary to give effect to the return order.

3. That the application filed 1 June 2007 and the response filed 3 July 2007 be otherwise dismissed.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6267  of 2007

STATE CENTRAL AUTHORITY SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES

Applicant

And

MR JIU

Respondent

REASONS FOR JUDGMENT

1. This is an application by the State Central Authority for the return to New Zealand of a child who was born in February 2004 in New Zealand.

2. The State Central Authority as the applicant issued proceedings on 1 June 2007 under the Family Law (Child Abduction Convention) Regulations 1986.

3. In addition to the usual factual material set out in the application, the applicant relied upon two affidavits by the mother of the child and one by a Mr H.

4. The husband who is the father of the child opposed the application on the basis that the child was not habitually resident in New Zealand at the time of his removal to Australia but even if he was, his removal was not in breach of the mother’s rights of custody by virtue of a fact that she had acquiesced in J the child not only living with the husband but also coming to live in Australia.

5. As with all of these sorts of cases, there is a significant conflict between the husband and wife and their respective witnesses.  That makes the issue very difficult because these are proceedings that I am obliged to determine summarily on the papers.

6. In some circumstances, the parties have diametrically opposed views about what happened.  I have searched through all of the material to try and find common ground and if possible corroboration, but otherwise have made the decision based upon a logical thread which satisfies me that one particular version is probably what happened.

7. It is also important to remember that I am not determining a parenting or custody issue here but rather which national forum is the appropriate place for the determination of such a dispute. 

Background

1. The husband and wife were married in China in October 2002.  The husband is a Canadian citizen and the wife is a resident of New Zealand.  The husband is currently living in Australia and is employed here.

2. As a result of a job offer, the husband and wife went to Auckland in New Zealand in July 2003.  His parents were already living there along with his sister and her family. 

3. The child was born in Auckland.  He is a New Zealand by birth and holds a New Zealand passport.

4. On any view of the facts, the child was provided with care from extended family members subsequent to his birth.

5. The husband says that in about December 2004, the wife took the child back to China and stayed with her parents for some seven months.  She then went to Auckland in about July 2005 back to the husband with the child.  Initially they all lived together at the home of his parents.

6. Notwithstanding the assistance that the wife may have been provided by the extended family on both sides up until that point in time, the obvious conclusion is that the wife was the person primarily responsible for the child’s care on a day by day basis.

7. It would appear that no sooner had the wife arrived back in Australia from China, the husband moved to Melbourne for work purposes and it was at least his intention that the wife and the child would join him.

8. Chronologically, the wife was again primarily responsible for the care of the child over the ensuing months whilst the husband was in Australia.  During the period of time until April 2006, the wife’s parents resided in New Zealand away from their homeland China.  I am satisfied that during that period of time, the wife’s parents provided assistance to the wife in respect of the care of the child

9. It is not suggested that the wife needed the assistance for any other reason than she was studying and endeavouring to work at the same time.

10. The wife asserts that during the period of time until April 2006, the husband had little to do with the child.

April 2006 onwards

1. The factual matrix from April 2006 onwards varies markedly between the parties.  There are subtle differences between each of them and the husband’s father and sister and each imputes an intention for what occurred to the other which is not accepted by the other. 

2. In April 2006, the wife’s parents indicated an intention to return to China.  That left the wife with a situation where if she was to continue to work and study, she would not be able to care for the child on her own.

3. A significant trail of email communications between the husband and the wife points to the thread of what probably happened.

4. On 8 April 2006, the wife told the husband of the return to China of her parents and suggested that the child return with them to China or alternatively the husband’s parents could take on that responsibility to care for the child.  The husband’s response was to urge the wife to think about alternatives and if they were not viable, the wife was to go the husband’s parents and he added:

   I am sure they can help.

   The husband then added:

   If you really can’t look after [the child], my parents are old and are often sick, so then I will take care of [the child].  You can take [the child] and his passport to my parents or to my elder sister’s.  When the time comes I’ll have them bring him to Australia so he can be looked after.

5. It seems clear to me that there was no intention at that time for the husband to take responsibility for the care of the child.

6. Two days later the wife wrote that she would take the child and his passport to the husband’s parents or to his elder sister.

7. To this point therefore it still seems that it was the husband’s parents or his sister who were to be caring for the child.  The picture becomes a little blurred because of the use of the word “passport” but having regard to what the husband had earlier said “when the time comes” for the child to go to live with him, I am still of the view that as at 11 April 2006, the wife was simply organising someone to assist her in the care of the child.

8. The husband then suggested that the wife should discuss the matter with his parents so that they could make the necessary arrangement.  I do not conclude that that meant any more than the husband was leaving the arrangement in the hands of the wife and his parents.

9. On 15 April 2006, the wife wrote to the husband indicating that she wanted to make the transition to the paternal grandparents quickly.

10. On 16 April 2006, the husband responded to the wife’s email accusing her of having “abandoned” the child and asking her to make “a little effort” to send his passport and medical documentation to his parents or sister.  That email provoked a response from the wife denying that she was in any way abandoning the child.  She went on to report that she had in fact already discussed the issue with the husband’s mother and sister.  Reading between the lines, the husband’s father however who was not party to the discussions, and certainly not present when the discussion between the wife, the paternal grandmother and paternal aunt took place, was not happy.  He accused the wife of having a lack of conscience in abandoning the child.

11. It seems to me that one of the core components of parental responsibility is to make decisions about the care of a child including leaving him with someone else at a time when necessary because of one’s own parental incapacity.  In this case, I have evidence from the mother that it is part of the Chinese culture to have significant involvement from extended family.  Furthermore, the child has had significant involvement with extended family right through his early years because either his father was not present or because his mother was working and studying.

12. The picture of what happened around the period from 8 April to 18 April 2006 becomes blurred by these emails.  What makes the thread difficult to follow is the reference to the use of the word “passport”.  The wife indicated that she would send it to the husband and she then went on to set out not only what the child’s daily habits were but also his diet.  She made the comment about the fact that the husband would have some difficulty understanding the child presumably because the husband did not know the child all that well and urged him to spend some time with him.  She even suggested that the husband employ a nursemaid.  Finally, the wife added that when there was time, she would go to Melbourne to see the child.

13. The husband points to this string of emails and particularly the last few comments as indicating that the wife was relinquishing her role in caring for the child as well as having a very good understanding that the child was going to live in Melbourne.  However, I do not accept that that was the wife’s intention.  The indications in the early emails were that the paternal grandparents were to care for the child and for an indeterminate time.

14. The wife swore a second affidavit having received the husband’s affidavit.  She made two significant points.  The first was that the move to the grandparents was an amicable one and that everyone had agreed upon it.  However it is clear that the paternal grandfather was not privy to that discussion.  Secondly, the wife points to the passport issue and says that she understood that at some point in the future, the child would be going to Melbourne on a holiday to see his father.

15. Against that background, I have the affidavit of the paternal grandfather who was adamant that when he found out about the child being present at his home on 16 April 2006, the child was crying and the paternal grandmother told him that the wife had no time or ability to look after the child and if they were unable to care for him as well, they should send the child to his father in Melbourne.  The difficulty I have with that evidence is that the paternal grandfather was not a party to the discussion and his views are at odds with the trail of emails.  If I then turn to the affidavit of the paternal aunt, she reports that the wife insisted in the conversation on 16 April 2006 that the paternal grandparents were to take over the child’s day to day care.  She said that the discussion centred around the problems that the grandparents would have in looking after a normal active two year old boy.  She then added:

    We suggested that [the wife] give up work and care for [the child] herself until such time as either her parents were able to return from China to assist or when she relocated to Melbourne with [the child] to join the respondent [who was then working there].  [The wife] did not say how long she wanted my parents to look after [the child] but it was obviously to be on a long term basis.

16. The paternal aunt then went on to say that if the grandparents were unable to assist then the child should be sent to the respondent father in Melbourne for him to be looked after.

17. What is suggested therefore is that the proposal that the child go to the husband in Australia came from the wife.  That seems inconsistent with not only the email trail but also the mother’s unequivocal statement that she understood that there was to be a holiday in Melbourne.

18. The conflict between the two sides on the question of whether there was an amicable arrangement or a heated discussion about the child’s future is difficult to resolve on the papers.  However, doing the best I can, I accept that the wife’s version is more plausible because she says that thereafter, she intended to have regular visits with the child on a contact basis and in my view, that must have meant Auckland, New Zealand.

19. The evidence thereafter is that the paternal grandfather was very angry and would not let her into the house because the child needed time to settle into the new environment.  The wife indicated that she ultimately decided to respect the wishes of the husband’s family by staying away to allow the child an opportunity to settle into the new environment.  She asserts that the elders including her own mother, suggested that that was a good idea.

20. However, the wife went on to say that she having agreed to stay away, continued to see the husband’s sister to “keep an eye on the situation”.  The husband’s sister said in her affidavit that the wife did not attend at her home after May 2006 when she delivered the child’s clothing and personal effects.  I am unable to determine which of the versions is true.  The paternal aunt says that the only communication was by telephone or electronic mail.  This was sporadic over a period of nine months.  The acknowledgement that such communication occurred however tends to suggest that the wife had not washed her hands of, nor “abandoned”, the child.

21. It transpires that in June 2006, the child was taken by the husband’s family to Melbourne and remained there for two and a half months before returning to Auckland.  The husband’s version of why his parents returned to Auckland was that in September 2006, his parents’ visitor’s visa was due to expire and accordingly, they returned to New Zealand.  The paternal aunt however had a slightly different and confusing version of what happened between June and September.  At paragraph 15 of her affidavit, she said:

    My family and I left Auckland and migrated to Melbourne, Australia at the end of September 2006.

22. The combination of the husband’s affidavit and the letter from the New Zealand police showing the relevant departure dates from Auckland and the September 2006 return strongly suggest that the paternal grandparents and the child did not “migrate” to New Zealand at all but rather went there for some shorter period that required a “visitor’s visa”.

23. The wife says that she became aware of the child having been taken to Melbourne and did not trouble herself about that because he would be with his father as she had anticipated for the holiday.  However, I accept that she was not told by the extended paternal family that they had returned in September.  It must also be remembered that this family had been accustomed to staying in various locations including China for several months at a time.

24. Thus, all of these issues seemed to me to suggest that what the wife was doing in April 2006 was exercising a parental responsibility to have some extended family member care for the child because of her incapacity to do so at that point in time.  Having regard to the custom of that occurring for lengthy periods of time, the indefinite nature of the care is not something that I find surprising.  When one adds the fact that the wife thought that there was going to be some contact between father and child of a holiday nature, it reinforces the fact that the wife was exercising a parental responsibility.

25. There are three more significant facts in this case that reinforce in my mind the fact that there was no abandonment of parental responsibility.

26. The first issue is that the parties agree that on Christmas Day 2006, the husband went to see the wife to “resolve” the “long term care issue” of the child.  In fact, the husband says that on that day he tried to discuss the wife taking the child back again but the wife, according to the husband, was not agreeable.  Again the parties’ versions of what happened diverge.  The wife says that the husband told her that the child was still in Melbourne.  She said that she asked the husband to allow his family to return the child and he became annoyed and left.  I am not in a position to determine exactly what happened that day however it strikes me as rather odd that the husband at that point in time still thought that the responsibility for caring for the child belonged to the wife because he wanted her to have him back.

27. The second unusual fact is that only weeks later on 20 January 2007, the husband went and visited the wife again.  The parties agreed that this occurred but differ about who was present.  The husband says that he and his father went with the child but that the child and the father remained in the car.  What seems to be common ground is that the wife would not talk to the husband and he left.  The husband said that his purpose in attending that day was to make “another attempt” to discuss the matter.  If the mother had “abandoned” the child and had reiterated that on Christmas Day 2006, one wonders why another attempt was necessary.  The parties differ about a significant thing that day.  The husband says that he attended with the child yet an affidavit was filed on behalf of the applicant by Mr H who said that he spoke to the husband (a fact that seems to be corroborated by the husband himself) but when Mr H went outside of the house, he found only the husband standing by his car alone.  The husband’s father said that he was present (albeit that he is one year out with the date).  On the papers, I am unable to make any determination as to exactly what happened however the very fact that the husband made this second attempt and did not take the child with him into the wife’s residence seems very odd.

28. Finally, at paragraph 30 of the husband’s affidavit, he asserts that the wife “abandoned” the child on 16 April 2006 and notwithstanding that the wife had his telephone details, she has made no contact with him at all.  He makes no indication that anything has occurred that would indicate that the wife still had even a passing interest in the child.  His father however said (paragraph 29) that he was aware that his son had direct contact with the wife by email and although it is not specifically set out when that occurred, I have inferred that it was some time in 2007.  The wife only refers to “communications” from the husband’s family suggesting that the matter could be resolved between the parties themselves and urging her not to go the authorities.  The whole position is very unsatisfactory.

The law

1. The proceedings are governed by the Family Law (Child Abduction Convention) Regulations 1986.

2. The application has been made under sub-regulation 14(1) within one year of the child’s removal from New Zealand.

3. For the purposes of Regulation 16(1A), I have to be satisfied that the child was habitually residing in New Zealand immediately before his removal to Australia.  In my view, there can be little doubt that he was habitually resident in New Zealand both in June 2006 and February 2007.  As was said in Re J (a minor) (1990) 3 WLR 949, the expression “habitually resident” is not to be treated as a term of art with some special meaning but rather it is to be understood according to the ordinary literal meaning of those two words. The child was born in New Zealand and is a New Zealand citizen. As I have found, he went to Australia in June 2006 with his paternal grandparents who had a visitor’s visa and was returned to New Zealand in September 2006. Subsequently, he was taken to Australia in February 2007 and it would appear on that occasion to have been a permanent move by the paternal grandparents. Either way, it seems to me that immediately prior to his removal in June and also in February 2007, he was normally residing and therefore habitually residing in New Zealand.

1. It was not argued before me that at the time of his removal to Australia in June 2006, the wife was not exercising rights of custody or would have exercised those rights had he not been removed.  On any view, the wife had rights of custody within the meaning of Regulation 4.  I have the affidavit of Mr A sworn 4 May 2007 in respect of that issue.  In addition, as I have set out above, I am satisfied that the wife would have been exercising a right to spend time with the child after June 2006 had he not been removed and in addition, that the wife had a right to determine the movement out of New Zealand had she been aware that it was happening.  She was also exercising her rights of custody by the decision I have referred to in leaving the child with the paternal grandparents.

2. Accordingly, for the purposes of Regulation 16(1A), I am satisfied that:

   (a)The child was under the age of 16 years;

   (b)The child resided habitually in New Zealand immediately before his removal to Australia;

   (c)The wife had a right of custody under the law of New Zealand;

   (d)The child’s removal to Australia was a breach of those rights of custody; and,

   (e)At the time that the child was removed to New Zealand either in June 2006 or in February 2007, the wife would have exercised those rights of custody had he not been so removed.

3. Much of the argument in this case has revolved around Regulation 16(3).  It is argued by the husband that the wife had consented to or subsequently acquiesced in the child being removed to or retained in Australia.  For the reasons that I have set out above, I do not accept that she acquiesced in, nor consented to, the child’s removal to Australia.  I find that that action by either the husband or his parents was unilateral.

4. Having disposed of the issues in sub-regulation 3, once I am satisfied that Regulation 16(1) is satisfied, it is mandatory that I make the order returning the child to New Zealand.  Accordingly, I grant the applicant’s application.

I certify that the preceding Fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date:  25 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as STATE CENTRAL AUTHORITY & JIU