State Central Authority and Kato

[2013] FamCA 743

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & KATO [2013] FamCA 743

FAMILY LAW – CHILD ABDUCTION – Hague Convention – where the children were habitually resident in New Zealand – where the children have been wrongfully removed to Australia by the mother – where the mother has not established any exceptions to a return order – orders made returning the children to New Zealand.

Family Law Act 1975 (Cth) s 111B
Hague Convention of 22 October 1980 on the Civil Aspects of International Child Abduction
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 4, 8, 14, 16, 29
Care of Children Act 2004 (NZ) s 15, 16, 17

Murray v Director, Family Services, ACT (1993) FLC 92-416
Police Commissioner of South Australia v Temple (1993) FLC 92-365
Re Bassi; Bassi and Director-General, Department of Community Services (1994) FLC 92-465
McCall and McCall; State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC 92-551
Laing v The Central Authority (1996) FLC 92-709
Director General; Department of Community Services v Crowe (1996) FLC 92-717
Re H (minors) (abduction: acquiescence) [1997] 2 All ER 225
DP v Central Authority; JLM v NSW Department of Community Services (2001) FLC 91-081
Quarmby v Director-General, Director of Community Services(NSW) (2005) 34 Fam LR
Director General; Department of Child Safety & S (2006) 34 Fam LR 636
State Central Authority & Sigouras (2007) 37 Fam LR 354
MW v Director-General, Department of Community Services (2008) 39 Fam LR 1
Director-General, Department of Child Safety & Milson [2008] FamCA 872 (22 October 2008)

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

RESPONDENT: Ms Kato

FILE NUMBER: MLC 5276 of 2013

DATE DELIVERED: 30 September 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Berman J

HEARING DATE: 23 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Porritt

SOLICITOR FOR THE APPLICANT: Legal Services Branch, Department of Human Services

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. That the application of the State Central Authority filed 1 July 2013 for the children B born … 2007 and C born … 2008 (“the children”) to be returned to New Zealand pursuant to Regulation 16 (1) of the Family Law Regulations be granted.

2. That the respondent mother Ms Kato do all things necessary to ensure the children are returned to New Zealand within thirty (30) days of the date of this order and to notify the applicant of the date and time of the departure and return not later than 96 hours prior to departure.

3. That pending the children returning to New Zealand the mother be restrained and an injunction is granted restraining her from removing or attempting to remove the children from the Commonwealth of Australia.

4. That the Commissioner of the Australian Federal Police and all Federal Agents and Australian Federal Police shall retain the name of the children on the All Ports Watch Alert System at all international departure points in the Commonwealth of Australia.

5. That the said children be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer/agent of the Department of Human Services on behalf of the State Central Authority advising on the travel arrangements for the said children to return to New Zealand on a date nominated for the said travel in the letter.

6. That the Marshall of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and Officers of the Police Forces and Services of the various states and territories are required and empowered to take all necessary steps to give effect to these orders.

7. Paragraph 3 of the orders made by Justice Cronin on 3 July 2013 be discharged and the respondent mother be forthwith entitled to collect any and all passports in respect of the said children lodged with this Court.

8. That immediately prior to the departure of the children from Australia, paragraph 2 of the order made by Justice Cronin on 3 July 2013 be discharged.

9. That the solicitor for the applicant do serve a sealed copy of this order on the proper officer of the Australian Federal Police as soon as is practicable.

10. That there be liberty to apply.

11. That all applications be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Kato has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLC 5276 of 2013

State Central Authority (Secretary to the Department of Human Services) 

Applicant

And

Ms Kato

Respondent

REASONS FOR JUDGMENT

introduction

1. On 1 July 2013, proceedings were issued pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth)[1] by the Secretary to the Department of Human Services in Victoria (“the State Central Authority”)[2] seeking orders for the return of B and C (collectively referred to hereafter as “the children”) to New Zealand.

   [1] Hereafter referred to as “the Child Abduction Regulations.” The Child Abduction Regulations are the means by which the Commonwealth of Australia has elected to give effect to its obligations as a signatory to the Hague Convention of 22 October 1980 on the Civil Aspects of International Child Abduction (hereafter referred to as “the Child Abduction Convention”). The Child Abduction Regulations are made under s 111B of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”).

   [2]        The Attorney-General of the Commonwealth has appointed the Department of Human   Services in Victoria to be the State Central Authority of Australia for the purposes of the   Child Abduction Regulations pursuant to Regulation 8 of the same.

2. The children currently reside in Australia with their mother Ms Kato (hereafter referred to as “the mother”).

3. The children’s father, Mr D (hereafter referred to as “the father”) continues to live in New Zealand. He has signed an authority empowering the State Central Authority to act on his behalf in respect of the application at hand.

4. The matter was heard before me on 23 August 2013 in Melbourne. The State Central Authority was represented by Ms Porritt of Counsel. The mother was self-represented. 

Background

1. The father was born in New Zealand in 1972 and is aged 40 years. The mother was born in New Zealand in 1980 and is aged 33 years.

2. Whilst the mother and the father are not agreed as to date of commencement of cohabitation they are agreed that they separated in mid-late 2009. 

3. B, was born in 2007 and is now aged 6 years. C, was born in and is now aged 5 years of age.

4. The mother claims that the “relationship was characterised by regular physical and verbal violence, including threats and intimidation, by the requesting father upon me and the children.”[3] The mother further claims that the father would “commit acts of violence of all kinds – emotional, physical and verbal – on me and the children regularly” when he was “inebriated” which was “often.”[4] The mother’s affidavit deposes to various incidents of physical and verbal violence inflicted upon the mother and the children by the father throughout the relationship.[5]

   [3]          Paragraph [13] of the mother’s affidavit filed 31 July 2013.

   [4]          Paragraph [13] of the mother’s affidavit filed 31 July 2013.

   [5]          Paragraph [14]–[18] of the mother’s affidavit filed 31 July 2013.

5. After separation, the parties were involved in parenting proceedings in the Auckland Family Court.   Those proceedings concluded upon the delivery of a judgment by Judge J G Adams of the Family Court at Auckland on 6 December 2011 after a three day trial occurring in late November and early December 2011.

6. Judge J G Adams made certain orders in that judgment pursuant to the Care of Children Act 2004 (Cth) (hereafter referred to as “the NZ Act”). The following are relevant to the matter at hand:

   a)An order awarding “day to day care” of the children to the mother “subject to a condition that the children shall generally reside in the greater Auckland care”;

   b)An order providing the father with “contact” to the children every third weekend, during school holidays, and during the Christmas period on the condition that the father attend a “specialist grief counselling program with a counsellor”.

7. The legal implications of the orders made by Judge J G Adams for the purposes of the matter at hand will be discussed later in this judgment.

8. It would appear that the children did not commence spending time with the father immediately after the delivery of the judgment of Judge J G Adams. In the father’s own words, he “took some time to consider the long-term effects of the court orders” before making “arrangements to undertake the necessary counselling ordered by the Court.”[6]

   [6]          Paragraph [7] of the father’s affidavit annexed to the initiating applications filed 31      July 2013.

9. The mother claims that the children only spent time with their father on two occasions following the delivery of the Judgment of J G Adams before the children were removed from New Zealand and taken to Australia.[7] The written material filed by the State Central Authority does not respond to this assertion. The legal consequence of the father’s alleged choice not to consistently exercise his right to spend time with the children pursuant to the orders of Judge J G Adams will be further considered.

   [7]          Paragraph [30] of the mother’s affidavit filed 31 July 2013.

10. It is an agreed fact that the children last spent time with their father on 26 May 2012.[8] There is disagreement as to what exactly occurred on that day.

    [8]          Paragraph [7] of the father’s affidavit annexed to the initiating applications filed 31      July 2013; Paragraph [30] of the mother’s affidavit filed 31 July 2013.

11. There is some uncertainty on the papers as to the exact date on which the children were removed from New Zealand.

12. At the final hearing before me on 23 August 2013, the State Central Authority tendered a letter addressed to them from the International Family Law Section of the Commonwealth Attorney-General’s Department dated 20 June 2013 (Exhibit 1). That letter relevantly provides:

    Department of Immigration and Citizenship travel movement records         show that the children most recently entered Australia on 17 July          2012 and have not departed since then. Their passenger cards state    that they were visitors or temporary entrants intending to remain in        Australia for 14 days.

13. Upon being presented with this information, the mother admitted that she made multiple trips between Australia and New Zealand between 31 May 2013 and 17 July 2013. She also admitted that the children have not left Australia since 17 July 2013.

14. Since arriving in Australia, the children have been living with their mother and their mother’s new partner, Mr E, in a suburb in Melbourne. The mother is employed full-time as a project manager in a traffic control group. The older child has been attending a local public primary school. The younger child has been attending a day care centre during the week.

15. The father signed an authority granting the State Central Authority permission to act on his behalf in respect of the matter at hand on 23 May 2013.

16. The Form 2 document that initiated these proceedings was filed by the State Central Authority on 1 July 2013.

17. The parties first appeared before this Court on 3 July 2013. On that day, Cronin J adjourned the matter for further mention to 9 July 2013. His Honour also made orders to the following effect:

    a)The mother was restrained from removing the children from Australia;

    b)The children were placed on the Airport Watch List pending further order; and

    c)The mother was to surrender any passports she held in the children’s names. 

18. The parties next appeared before Cronin J on 9 July 2013. The mother was ordered to file and serve a response to the State Central Authority’s initiating application and any affidavit in reply upon which she intended to rely by 29 July 2013. The matter was adjourned to 31 July 2013.

19. The parties next appeared before Cronin J on 31 July 2013. His Honour gave leave for the mother to file her Form 2A Answer and Cross Application document and supporting affidavit during the hearing. The State Central Authority was ordered to file and serve any material in reply to the material that had been filed by the mother by 9 August 2013. The matter was adjourned for final hearing to 23 August 2013 as a half-day matter to be determined on the papers.

20. Affidavits sworn by the father and the father’s current partner, Ms F (hereafter referred to as Ms F”) on 8 August 2013 were filed by the State Central Authority on 9 August 2013.

Determination

1. The parties were not ordered to file outlines of argument.

2. It would appear that the mother had legal assistance in preparing the material that she filed in response to the State Central Authority’s application. The following extract from the mother’s answer and cross-application document as filed on 31 July 2013 comprises the mother’s legal objections to the application made by the State Central Authority for the return of the children to New Zealand. :

   1. The removal of the children the subject of the application from New Zealand (a Convention Country) to Australia (a Convention Country) was not wrongful and was in the best interests of the children and in accordance with the terms of the Convention.

   2.        The best interests of the children the subject of this application        would be served by an application denying the need for the        return of the children to New Zealand and permitting and          facilitating their continued residence with their mother, the    Respondent named above, in Melbourne, Australia.

   3.        To order the return of the children would expose them to       physical or psychological harm or otherwise place them in an       intolerable situation.

   4.        To order the return of the children to New Zealand would      result in separation of siblings.

   5.        To order the return of the children to New Zealand would not          be in their best interests.

3. At paragraph [48] of her affidavit filed in support of her answer and cross-application document filed on 31 July 2013, the mother expands on the reasons why she thinks the State Central Authority’s application should not be granted:

   48.      I ask the Court to determine that the removal of the children   from New Zealand was not wrongful and was in their best   interests and that I be permitted to remain residing in Australia   with them on the basis of any or all of the following: the   acquiescence by the father in our residing in Australia, his lack   of having exercised his “rights” of custody” prior to our   departure from New Zealand; my firm belief that the children   have no desire to return to live in New Zealand and that proper   arrangements can be made with their father without being   returned to leave Australia, and that their views on such   matters should be considered; and that there is a grave risk that   an order for their return would expose them to physical or   psychological harm or would otherwise place them in an   intolerable situation.

4. The submissions of the mother as contained in the above two extracts raise matters which could possibly substantiate an exception to the return order sought by the State Central Authority as contained in subregulation 16(3) of the Child Abduction Regulations.

5. Whether or not the father was exercising his rights of custody prior to the children’s removal from New Zealand, and whether that removal was wrongful, are both matters that the State Central Authority must prove to activate my obligation to return the children pursuant to subregulations 16(1) and 16(1A) of the Child Abduction Regulations.

6. Conversely, the “best interests of children” or the undesirability of the “separation of siblings” are not reasons in themselves to refuse a return order.

7. The tension in Hague Convention proceedings is the extent to which a court considering an application for return of a child to a requesting country should take into account matters that might be considered relevant to a consideration of the best interests of the child.  Matters that would normally involve the interests of the child as “the paramount consideration” do not apply in proceedings under the regulations.  Regulation 16 requires that in some circumstances the obligation to make a return order is mandatory.  Even though there is nonetheless some scope for discretion as to whether a return order should be made, any such consideration does not involve consideration of the best interest of the child “as a paramount consideration”.

8. In Quarmby v Director-General, Director of Community Services(NSW) (2005) 34 Fam LR 8 the Court was faced with an application for contact by a sibling of a child subject to a return order to the USA. The Court was faced with a consideration as to whether the contact application took priority over the Hague Convention Application. Ultimately the Court disposed of the issue in the following manner:-

   [63]     Ultimately this case is about selecting the forum in which      it is appropriate that issues relating to S’s future      residence be determined. The Hague Convention and the           Abduction Regulations mandate that in the circumstances          of this case, the child having been wrongfully removed           from the USA, the appropriate forum is a Court in the USA.  The issue of contact raised by A in relation to her      ongoing relationship with her sister will no doubt be   matters that will be property considered in the USA in           relation to any application brought by the mother for a          residence order, and permission to bring the child to live in Australia.

9. The relationship between the Convention proceeding and parenting proceedings has been the subject of significant judicial consideration.  The remarks of Kirby J in DP v Central Authority; JLM v NSW Department of Community Services (2001) FLC 91-081 at [128] are apposite:-

   It is in this sense that provisions such as those in the Regulations are properly to be classified not, as such, as laws searching for the best interests of the child but rather as laws for selecting the forum where that search is to be undertaken and concluded.  It is easy enough to slip back into a factual enquiry into the child’s best interests, that having for centuries been the duty of common law courts in disposing of analogous cases.  But such a tendency must be resisted for otherwise the attainment of the main point of the regulations and the convention will be frustrated.

10. Notwithstanding the initial uncertainty surrounding the mother’s case before me she ultimately conceded that whilst she relied upon the defences of consent, grave risk and the objections of the children, ultimately the gravamen of the mother’s opposition to a return order was founded in the exception of “grave risk”.

11. As such, I will turn to the applicable regulations of the Child Abduction Regulations to highlight the areas on which the parties are in agreement and which they are not.

12. Sub regulation 16(1) of the Child Abduction Regulations requires the Court to make the return order requested by the State Central authority in this case if three questions are answered in the affirmative.

13. The first question, pursuant to subregulation 16(1)(a), is whether an application for a return order has been made. This is not a matter of dispute between the parties.

14. The second question, pursuant to subregulation 16(1)(b), is whether the application for a return order was filed within one year after the child’s removal or retention. There was concession by the mother that the children were removed from New Zealand and arrived in Australia on 17 July 2012 and have not left since that date.

1. The third question, pursuant to subregulation 16(1)(c), is whether the State Central Authority has satisfied the court that the child’s removal or retention was wrongful under subregulation 16(1A).

2. Subregulation 16(1A) requires the Court to be satisfied of five factors if it is to be satisfied that the child’s removal or retention was wrongful for the purposes of subregulation 16(1)(c). The State Central Authority carries the burden of proof in relation to the factors referred to in subregulation 16(1A) (see subregulation 16(1)(c)).

3. The first factor, pursuant to subregulation 16(1A)(a), is whether the children were under 16 at the time they were removed to Australia. This factor is clearly satisfied – the children are aged 6 years and 5 years as at the time of the hearing.

4. The second factor, pursuant to subregulation 16(1A)(b), is whether the children were habitually resident in a convention country immediately before the children’s removal to Australia. New Zealand is a convention country for the purposes of the Child Abduction Convention, with the Convention having been in force in that country since 1 August 1991. Furthermore, the mother does not take issue with the fact that the children were habitually resident in New Zealand immediately before the children were removed to Australia.

5. The third, fourth, and fifth factors in subregulation 16(1A) all concern the father’s “rights of custody.” Namely:

a.   Pursuant to subregulation 16(1A)(c), is whether the father had “rights of custody” in relation to the children under the laws of New Zealand immediately before the children’s removal to Australia;

b.   Pursuant to subregulation 16(1A)(d), is whether the children’s removal to Australia was in breach of those “rights of custody”; and

c.   Pursuant to subregulation 16(1A)(e)(i) and (ii), is whether, at the time of the children’s removal, the father either was “actually exercising the rights of custody (jointly or alone)” or “would have exercised those rights if the children had not been removed or retained.”

1. The starting point is regulation 4 of the Child Abduction Regulations, which provides as follows:-

(1)For these Regulations, a person, institution or other body has rights of custody in relation to a child if:

(a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and

(b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.

(2)For the purposes of subregulation (1), rights of custody include rights relating to the          care of the person of the child and, in particular, the right to determine the place of residence of the child.

(3)For the purposes of this regulation, rights of custody may arise:

(a)      by operation of law; or

(b)by reason of a judicial or administrative decision; or 

(c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.

1. The children were habitually resident in New Zealand, a convention country, immediately before their removal to and subsequent retention in Australia (subregulation 4(1)(a)).

2. The next question is whether “rights of custody” in relation to the children are attributed to the father under a law in force in New Zealand.[9] The affidavit as to applicable law prepared by New Zealand solicitor Belinda Ruth Pidwell (“Ms Pidwell”) sworn on 28 May 2013 establishes that the father had rights of custody.

   [9]          See, eg, the approach taken in cases such as Police Commissioner of South Australia                v Temple (1993) FLC 92-365 (Murray J); Re Bassi; Bassi and Director-General,   Department of Community Services (1994) FLC 92-465 (Johnston JR); McCall and                 McCall; State Central Authority (Applicant); Attorney-General (Intervener) (1995)                   FLC 92-551(Nicholson CJ, Ellis and Fogarty JJ); and Director General; Department                of Community Services v Crowe (1996) FLC 92-717 (Barblett DCJ, Ellis and Lindenmayer JJ).

3. As noted in paragraph 6 of Ms Pidwell’s affidavit, s 17(1) of the Care of Children Act 2004 (NZ) (“the New Zealand Act”) provides that the respondent mother and the father are “guardians jointly” of the children.[10] This is because the mother and father were living together in a de facto relationship at the time both of the children were born.[11]  The definition of guardianship and the manner in which guardianship is to be exercised are considered respectively in s 15 and s 16 of the New Zealand Act.

   [10]         I note that regulation 29(5) of the Child Abduction Regulations allows me to take   judicial notice of a law in force in a convention country.

   [11]         See generally s 17 of the New Zealand Act.

4. The status of the father as a “joint guardian” of the children by virtue of s 17 of the New Zealand Act meant that under the law of New Zealand and immediately before the removal of the children from that country, the father had “rights of custody” within the meaning of regulation 4 of the Child Abduction Convention.[12]

   [12]         The joint judgment of Gummow, Heydon and Crennan JJ in MW v Director-General,                Department of Community Services (2008) 39 Fam LR 1 at 22 is authority to that effect. Kirby J reached a similar conclusion in his judgment at 47, though His Honour dissented from the majority judgment on other issues.

5. As such, I am satisfied that, for the purposes of subregulation 16(1A)(c), the father had “rights of custody” in relation to the children under the laws of New Zealand immediately before the child was removed and subsequently retained in Australia.[13]

   [13]         Paragraphs [7]–[10] of the affidavit as to applicable law sworn by Belinda Ruth           Pidwell also contained a further submission that the father had an additional and     separate source of “rights of custody” for the purposes of regulation 4 of the Child    Abduction Regulations arising out of the orders made by Judge J G Adams on 6            December 2011. Given my findings above at paragraph [50] it is not necessary for        me to determine that point, which would appear to be far from settled as a matter of          law – see generally the judgment of Gummow, Heydon and Crennan JJ in MW v     Director-General, Department of Community Services (2008) 39 Fam LR 1 19–21.

6. I now turn to consider, pursuant to subregulation 16(1A)(d), whether “the child’s removal to, or retention in, Australia [was] in breach of those rights of custody.” Whether the rights of custody that have been attributed to the father by the operation of the New Zealand Act are “rights of custody within the meaning of the Regulations and whether there has been a breach of those rights are matters to be determined in accordance with Australian law.”[14]

   [14]         Director General; Department of Community Services v Crowe (1996) FLC 92-717 at 83,637 (Barblett DCJ, Ellis and Lindenmayer JJ).

7. Rights of custody for the purposes of the Child Abduction Regulations are defined in regulation 4 (as extracted above) and include “rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.”

8. The father’s status as a joint guardian of the children under the New Zealand Act enables him to determine “for or with the child … questions about important matters affecting the child” including “changes to the child’s place of residence.” [15]

   [15]         Care of Children Act 2004 (NZ) s 16(1)–(2).

9. As such, the rights of custody that have been attributed to the father by operation of the New Zealand Act clearly fall within the definition of “rights of custody” within the meaning of the Child Abduction Regulations.

10. A removal or retention of a child is in breach of rights of custody if the State Central Authority establishes “simply that the removal, or retention, is contrary to or interferes with rights of custody as defined in Article 5” of the Child Abduction Convention (as reflected in Regulation 4 of the Child Abduction Regulations).[16]

    [16]         Director General; Department of Child Safety & S (2006) 34 Fam LR 636 at 642 (O’Reilly J).

11. Clearly, the children’s removal to Australia was in breach of the father’s right to determine the children’s place of residence. The mother’s removal of the children to Australia interfered with the father’s ability to exercise that right.[17] I am satisfied that the State Central Authority has established that the children’s removal to and subsequent retention in Australia was in breach of the father’s rights of custody for the purposes of subregulation 16(1A)(d).

    [17]         Director-General, Department of Child Safety & Milson [2008] FamCA 872 (22 October 2008) at [27].

12. The final matters to be considered in relation to subregulation 16(1A) are those referred to in subregulation 16(1A)(e)(i)–(ii).That is, was the father, at the time of the children’s removal to Australia “actually exercising the rights of custody (either jointly or alone)” and/or would the father “have exercised those rights if the child had not been removed or retained.”

13. As extracted above, in paragraph [48] of her affidavit filed in support of her answer and cross-application document filed on 31 July 2013, the mother refers to the father’s supposed “lack of having exercised his ‘rights’ of ‘custody’ prior to [her and the children’s] departure from New Zealand.”

14. The mother’s submissions do not elaborate as to the precise circumstances in which the father was neither “actually exercising [his] rights of custody” nor “would have exercised those rights if the children had not been removed or retained.”   

15. The mother may have been contending that, because the father was allegedly only exercising his right under the orders of Judge J G Adams to see the children sporadically, that had the legal effect of the father being deemed not to be actually exercising his rights of custody either at the present time or at any point in the future if the children had not been removed from New Zealand. That appears to be the general thrust of the following excerpt from her affidavit filed 3 July 2013 (Document 3).

    46.      … With his having seen the children only twice, due to his     own shortcomings, since the Court orders of December, 2012 I       am concerned that the father may not be able to substantiate        that he was exercising proper and full “contact” with the           children to establish his “rights to custody” under the Hague           Convention that are necessary to found his proper application       to this Court for the return of the children to New Zealand.

16. However, the parenting orders made by Judge J G Adams are not the source of the father’s rights of custody.

17. Furthermore, at least one component of the father’s rights of custody, being the right to determine the residence of the children, is not amenable to being actively exercised on a regular basis.[18] Indeed, in situations such as this, where the residence of the children was changed without his knowledge, any attempted exercise of that right could only have been reactionary.

    [18]         To similar effect, see the comments of Johnston JR in Re Bassi; Bassi and Director-       General Department of Commnity Services (1994) FLC 92-465 at 80,825.

18. As such, I am satisfied for the purposes of subregulations 16(1A)(e)(i)–(ii) that, at the time of the children’s removal to Australia, the father was “actually exercising [his] rights of custody” and “would have exercised those rights if the children had not been removed or retained.”

19. Accordingly, the State Central Authority has satisfied me that the children’s retention in Australia was wrongful within the meaning of subregulation 16(1A).

20. Given my earlier findings concerning subregulations 16(1)(a) and (b), the Court’s obligation to make the return order as requested by the State Central Authority is enlivened, subject only to the applicability of any of the exceptions contained in subregulation 16(3).

21. The mother promotes with varying degrees of reliance, the following exceptions to a return order as contained in subregulation 16(3) of the Child Abduction Regulations:

    (3)      A court may refuse to make an order under subregulation                 (1) or (2) if a person opposing return establishes that:-

    (a)      a person, institution or other body seeking the child’s   return:-

    …

    (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;

22. The exceptions provides a means by which a respondent may resist an application for a return order despite the applicant establishing the factors referred to in subregulation 16(1) of the Child Abduction Regulations (and by necessary corollary, by establishing that a wrongful removal or retention of a child has occurred with reference to the five factors in subregulation 16(1A) of the Child Abduction Regulations.)

23. I am not required to refuse to make a return order merely because the mother has established an exception within the meaning of subregulation 16(3) of the Child Abduction Regulations due to the residual discretion provided for by subregulation 16(5).

24. I will now consider each of these potential exceptions to the return order relied upon by the mother.

Regulation 16 (3)(a)(ii) – Consent and acquiescence

1. The exception based on consent or subsequent acquiescence was very lightly pressed by the mother in her submissions. In her affidavit filed 31 July 2013, the mother points to the father’s supposed “lack of having exercised his ‘rights to custody’ prior to [her and the children’s] departure from New Zealand.”[19] Elsewhere in that document, the mother states:

   I also raise the question of acquiescence, since I believe the requesting father has done nothing to object to my residing in Australia in almost a year when I am firmly of the view he could have instructed lawyers much earlier to begin the required proceedings.[20]

   [19]         Paragraph [48] of the mother’s affidavit filed 31 July 2013.

   [20]         Paragraph [9] of the mother’s affidavit filed 31 July 2013.

2. The mother’s evidence in relation to acquiescence “will need to be unambiguous and cogent if the court is to accept it to the requisite standard of proof.”[21]

   [21]         State Central Authority & Sigouras (2007) 37 Fam LR 354 at 418 (Bennett J).

3. Acquiescence is a question of the actual subjective intention of the father, not of the mother’s perception of his intentions.[22] The actual subjective intention of the father can be inferred from his “outside and visible acts.”[23] The mother bears the burden of proof in establishing the actual subjective intention of the father.[24]

   [22]         Re H (minors) (abduction: acquiescence) [1997] 2 All ER 225 at 235–237 (Lord Browne-Wilkinson as cited by Bennett J in her judgment in State Central Authority & Sigouras (2007) 37 Fam LR 354 at 418–419.

   [23] Ibid.

   [24]         The respondent bears the burden of proof with all of the exceptions contained in           subregulation 16(3) of the Child Abduction Regulations..

4. The test for  subregulation 16(3)(a)(ii) is as follows:

   Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.[25]

   [25]         Re H (minors) (abduction: acquiescence) [1997] 2 All ER 225 at 235–237 (Lord Browne-Wilkinson as cited by Bennett J in her judgment in State Central Authority & Sigouras (2007) 37 Fam LR 354 at 420.

5. The mother’s evidence does not establish that the father acquiesced in the wrongful removal of the children from New Zealand to Australia for the purposes of this exception.

6. The last time the father saw the children was on 26 May 2012. That is agreed between the parties. The father’s current partner Ms F has annexed material to her affidavit filed 8 August 2013 (Document 5) that contains a Facebook website message from Ms F to the mother dated 25 June 2012 that indicates that the father and Ms F were concerned at not having “heard or seen the children in nearly a month” and that the father “has tried phoning” the mother to no avail. It would appear that Ms F continued to send Facebook website message following that date inquiring as to the whereabouts of the children.

7. The father’s affidavit material suggests that the father sought to contact various people to help him with the return of the children, including:

   a)        contacting the Internal Revenue Department and the New      Zealand Police in September 2012 to see if they could help find    his children;[26]

   b)       emailing the “children’s Court appoint lawyer” who had carriage      of the children’s interest during the proceedings before Judge J G          Adams in New Zealand on 12 November 2012;[27]

   c)        having his lawyer right a letter to the mother’s former lawyer in       New Zealand on 14 May 2013 to seek confirmation of her           whereabouts;[28]

   d)       having his lawyer write a letter to the children’s Court appointed      lawyer who had carriage         of the children’s interest during the         proceedings before Judge J G Adams in New Zealand on 12        November 2012 to see if that person had any information;[29] and

   e)emailing a City H based “international lawyer” named Mr G whom the father erroneously thought was acting for the Central Authority in New Zealand on 20 May 2013.[30]

   [26]         Paragraphs [11]–[12] of the father’s affidavit annexed to the initiating application        filed 31 July 2013.

   [27]         Paragraph [8] of the father’s affidavit annexed to the initiating application filed 31        July 2013.

   [28]         Paragraph [14] of the father’s affidavit annexed to the initiating application filed 31      July 2013.

   [29]         Paragraph [15] of the father’s affidavit annexed to the initiating application filed 31      July 2013.

   [30]         Paragraph [9] of the father’s affidavit annexed to the initiating application filed 31        July 2013.

8. On the father’s evidence, it was not until the mother in some way disseminated her Melbourne address on the Facebook website sometime in February 2013 that the father learned exactly where she and the children were living.[31]

   [31]         Paragraph [13] of the father’s affidavit annexed to the initiating application filed 31      July 2013.

9. By 23 May 2013, the father’s inquiries with the relevant authorities had progressed to the stage where he was in a position to authorise the State Central Authority to act on his behalf concerning this matter. The application itself was filed on 1 July 2013.

10. The evidence of the father and his current partner Ms F would, if accepted, establish that the father did not acquiesce in the mother’s wrongful removal of the children from New Zealand to Australia for the purposes of this exception.[32] The mother has in no way sought to rebut this evidence. As such, I accept the evidence of the father and his current partner Ms F on this point.

    [32]         Indeed, mere passivity on behalf of the father for the period between the time the          mother and the children arrived in Australia and the time the application was filed       may not have been sufficient to establish acquiescence for the purposes of this          exception – see generally the joint judgment of Baker, Lindenmayer and Smithers JJ        in Laing v The Central Authority (1996) FLC 92-709 at 83,507.

1. As such, the mother has failed to establish the matters referred to in the exception to a return order pursuant to subregulation 16(3)(a)(ii) of the Child Abduction Regulations.

Subregulation 16(3)(b) – Grave risk

1. The parties directed their oral submissions primarily toward the applicability of this exception. The mother’s submission on this point had two limbs, namely, that there is a grave risk that returning the children to New Zealand would “expose the children to physical or psychological harm or otherwise place the children in an intolerable situation” as a result of:

   a)        alleged issues of domestic violence inflicted by the father upon       the mother and the children that predate the judgment and orders        of Judge J G Adams of the Family Court at Auckland as delivered     on 6 December 2011;[33] and/or

   b)       Issues of grave risk to the children arising out of an incident that      allegedly occurred on 26 May 2012, which was the last occasion          on which the father and the children spend time together.[34]

   [33]         Paragraph [13]–[29] of the mother’s affidavit filed 31 July 2013.

   [34]         Paragraph [30]–[32] of the mother’s affidavit filed 31 July 2013.

2. At the final hearing of this matter, I informed the mother that the first limb of her argument on this exception was misguided in that it refers to incidences of domestic violence inflicted by the father that predate the judgment and orders of Judge J G Adams in 6 December 2011. His Honour had already considered those matters and made orders that were to regulate the future relationship between the mother and the father taking into account the history of their relationship.

3. As such, the applicability of this exception will stand or fall on the mother’s submissions as to the events of 26 May 2012.

4. The mother’s affidavit contains the following summary of the interaction between the mother and the father on 26 May 2012:

   30.The incident to which I referred earlier in this affidavit that    convinced me to flee New Zealand occurred on 26 May, 2012.     The three children ([J, B and C]) had been        with their father for only their second visit since the orders were made the previous December (he had not exercised his full ‘right’ to see them more regularly than that) and upon their return to me that day we were in a McDonalds restaurant. As I was getting ready to leave with the children, the father said words to the effect of “why don’t you keep C and I’ll take B”. I was completely taken aback at this suggestion of splitting the children and when I said I wasn’t at all    interested in that, and that he should “go back to Court” if that was what he wanted, the father started screaming at me and the children and made threats against us. This was in the presence of his partner who then began dragging him away from us as he continued yelling. His threats included words to the effect of “if I can’t have my kid I’ll fucking kill you and the kids”.

   31.      I was terrified for our safety. I believed, based on my past with        him and the violence he has perpetrated against me and the children that he could and would go through with this threat.

   32.      I left the area with the three children and resided for a few days       in Auckland with my partner’s parents. From there I hurriedly         made arrangements for the children and my travel to Sydney,          Australia.[35]

   [35]         Paragraph [30]–[32] of the mother’s affidavit filed 31 July 2013.

5. The father disputes the mother’s version of events in his affidavit:

   4.I refer to my partner [Ms F’s] Affidavit filed simultaneously and confirm that she was present on 26 May 2012. My recollection of that day is that we were returning the children to their mother as agreed. When [Ms Kato] entered the McDonalds, she ordered a meal, and sat down to eat it with us. After having had a conversation about whether we should separate the children, which I did not agree to, I left to say goodbye to the children and returned to my car because I did not want them to see me upset. I do find it upsetting when I leave them. At no time did I make any threat to [Ms Kato] or the children. McDonalds is a very public place and [Ms Kato] has a Protection Order held against me. If she was concerned for her safety, she could have taken a number of steps at that point in time. However she finished her meal and the children were put in the car without incident. That was the last time I saw her and the children.[36]

   [36]         Paragraph [4] of the father’s affidavit filed 9 August 2013.

6. The affidavit of the father’s current partner, Ms F, corroborates the father’s version of events. She claims that the father did not threaten the mother nor raise his voice, nor was there any other threatening behaviour.[37] She further claims that it was the mother who suggested that the deponent and the father should have custody of the child B.[38]

   [37]         Paragraph [9] of Ms F’s affidavit filed 9 August 2013 .

   [38]         Paragraph [7] of Ms F’s affidavit filed 9 August 2013.

7. It is the mother who bears the burden of proof in establishing the exceptions contained in subregulation 16(3) of the Child Abduction Regulations. In circumstances where I am unable to make a finding of fact as to what actually happened on 26 May 2012 at the McDonalds Restaurant, I am left with no other option but to make a finding that the mother has failed to establish the matters spoken of in the exception to a return order contained as subregulation 16(3)(b) of the Child Abduction Regulations.

8. Even if I was able to make a positive finding that the mothers’ version of events did in fact happen, the events of 26 May 2012 would not have persuaded me that there was a grave risk that returning the children to New Zealand would expose them to physical or psychological harm or otherwise place them in an intolerable situation for the purposes of this exception.

9. The mother has in no way demonstrated that New Zealand is incapable of protecting it citizens from threatened or actual violence. In the words of Nicholson CJ and Fogarty J[39]

   … New Zealand has a system of family law and provides legal protection to persons in fear of violence which is similar to the system in Australia.

   It would be presumptuous and offensive in the extreme, for a court in this country to conclude that the wife and children are not capable of being protected by the New Zealand Courts or that relevant New Zealand authorities would not enforce protection orders which are made by the Courts.

   In our view … the circumstances in which Regulation 16(3) comes into operation should largely be confined to situations where such protections are not available …

   For us to do otherwise, would be to act on untested evidence to thwart the principal purposes of the Hague Convention, which are to discourage child abduction and, where such abduction has occurred, to return such children to their country of habitual residence so that the courts of that country can determine where or with whom their best interests lie.

   [39](1993) FLC 92-416 at 80, 259-260

10. Indeed, on the mother’s own evidence, “domestic violence orders under the Domestic Violence Act 1995 have been made in favour of, and against, both the father and I.”[40] The mother was also prepared “freely and with no hesitation to inform this Court that both the requesting father and [her] have come to the attention of the police and the law” arising out of incidents occurring during their relationship.[41]

    [40]         Paragraph [40] of the mother’s affidavit filed 31 July 2013.

    [41]         Paragraph [22] of the mother’s affidavit filed 31 July 2013.

11. The mother is clearly aware of the protections that are available to her and the children in New Zealand.

12. It defies belief that the only way the mother thought she could “escape from the father’s alcohol-fuelled violence” was to unilaterally take the children to another country.[42] The mother could have reported the events of the 26 May 2012 to the police. She could have approached the criminal courts to either seek a variation of the domestic violence orders or the protection orders that were apparently in place against the father. She could have approached the family law courts to seek a variation of the existing parenting orders. She can do any or all of these things if she decides to return to New Zealand with the children should I make the return order requested by the State Central Authority. The mother has not established that utilising one or more of these options would not be sufficient to ensure the psychological and physical safety of the children. 

    [42]         Paragraph [4] of the mother’s affidavit filed 31 July 2013.

13. In summary, the mother has failed to establish the matters referred to in the exception to a return order pursuant to subregulation 16(3)(b) of the Child Abduction Regulations.

Subregulation 16(3)(c) – Objections of the children

1. This exception was also very lightly pressed by the mother in her written submissions, and not covered extensively in her oral submissions. In her affidavit filed 31 July 2013, the mother states that the older child B is “settled and doing well” at a local public primary school with “good” academic progress and that she is “much better than she was doing in New Zealand.” The younger child is said to be “progressing well” at a local day care centre where “she is making good social and education progress.”[43]

   [43]         Paragraph [41] of the mother’s affidavit filed 31 July 2013.

2. The mother goes on to say that “the children are bonded with [the mother’s new partner]” and are “thoroughly enjoying life in Melbourne and in their schools with new friends and playmates.”[44] She later  speaks of her “firm belief that the children have no desire to return to live in New Zealand.”[45]

   [44]         Paragraph [43] of the mother’s affidavit filed 31 July 2013.

   [45]         Paragraph [48] of the mother’s affidavit filed 31 July 2013.

3. The issue with the mother’s submissions on this point is that there is no objective evidence to establish the matters she speaks of in her affidavit. Indeed, there is very little subjective evidence on this point, with the above excerpts representing the totality of the evidence concerning the children’s supposed objection to a return to New Zealand.

4. Even taken at its highest, the mother’s evidence on this point does not satisfy me that the children object to being returned to New Zealand, nor that any such objection “shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes” that would be needed to substantiate this exception.

5. Furthermore, though she did not engage with this part of the exception, given the relative youth of the children, the mother would have found it hard to persuade me that the children had “attained an age and degree of maturity” at which it would have been appropriate for me to take account of their views on the matter.

6. As such, the mother has failed to establish the matters referred to in the exception to a return order pursuant to subregulation 16(3)(c) of the Child Abduction Regulations.

Conclusion

1. Given my findings concerning the inapplicability of any of the exceptions to a return order contained in subregulation 16(3), I do not consider that I need to engage with the residual discretion as provided for in subregulation 16(5) of the Child Abduction Regulations. 

2. In summary, the State Central Authority has established the matters referred to in subregulations 16(1) and 16(1A) of the Child Abduction Regulations. As such, my obligation to make the requested return order has been enlivened. The mother has not established any of the exceptions to a return order as referred to in subregulations 16(3) of the Child Abduction Regulations.

1. Accordingly, and for the foregoing reasons, I make the orders that appear at page 3 of this judgment.

I certify that the preceding one hundred and one paragraphs (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 30 September 2013.

Associate:

Date:  30/9/13