State Central Authority and Kejah

[2019] FamCA 391

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & KEJAH [2019] FamCA 391  

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Children brought to Australia from New Zealand – Whether father consented to children’s removal – Family Law Act 1975 s 111B –Family Law (Child Abduction Convention) Regulations 1986 (Cth) – reg 16 – Return Order.

Family Law Act 1975 s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) rr 14, 15(2), 16

De L v Director General, NSW Department of Community Services (1996) 187 CLR 640
Wenceslas and Director – General Department of Community Services [2007] FamCA 398
Re H (Abduction: Habitual Residence: Consent ) [2000] 2 FLR 294

APPLICANT: State Central Authority

RESPONDENT: Ms Kejah

FILE NUMBER: MLC 3707 of 2019

DATE DELIVERED: 26 June 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Williams J

HEARING DATE: 3, 5 & 6 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Greenham

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

COUNSEL FOR THE RESPONDENT: Mr Howe

SOLICITOR FOR THE RESPONDENT: RRR Lawyers

Orders

1. All previous parenting orders are discharged.

2. The children, X born in …2008 and Y born in… 2014, be returned to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1989 (Cth) in accordance with these orders.

3. Within two days of the date of this order, the father, Mr B, arrange airfares for the children to return to New Zealand at his expense.  The father must provide a copy of the flight itinerary to the mother’s solicitor and the State Central Authority within two days of booking the tickets. 

4. The mother must deliver the children to the Child Minding Centre located on    level 5, Owen Dixon Commonwealth Law Courts Building, 305 William Street, Melbourne at 9:30AM on 1 July 2019, and the father collect the children from the Child Minding Centre at 9:30AM on 1 July 2019.

5. The Registry of this Court release to the father, Mr B, any and all passports held in the names of the children X (born in … 2008) and Y (born in … 2014).

6. Until further order, the mother, Ms Kejah, her servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the children: 

   X born … 2008; and

   Y born … 2014

   from the Commonwealth of Australia.  This order ceases to have effect 2 years after the date on which it is made.

7. The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.

8. The Court requests that the Australian Federal Police place the names of the children on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders.  This order ceases to have effect 2 years after the date on which it is made.

9. The father, Mr B, is permitted to remove the children X born in … 2008 and Y born in … 2014 from the Commonwealth of Australia for the purpose of returning the children to New Zealand.

10. The father is to notify the mother’s Australian solicitor, and the State Central Authority in writing by email that the children have arrived safely in New Zealand within 24 hours of arriving.

11. The State Central Authority (through the Australian Central Authority) is to conduct a movement records check to confirm the children’s offshore status after the children have departed Australia. The State Central Authority (through the Australian Central Authority) will then seek the New Zealand Central Authority’s confirmation the children landed in New Zealand.

12. The parties have liberty to apply in relation to the above orders.

IT IS FURTHER ORDERED BY THE COURT

1. The Hague Convention Report, of Mr C, dated 4 June 2019, may be referred to or used by the Father or the Respondent Mother in parenting proceedings in either Australia or New Zealand.

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 Kejah 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 MELBOURNE

FILE NUMBER: MLC3707 of 2019

State Central Authority

Applicant

And

Ms Kejah

Respondent

REASONS FOR JUDGMENT  

INTRODUCTION 

1. This is an application by the State Central Authority filed on 8 April 2019, seeking the return to New Zealand of the children, X, born in 2008 and Y, born in 2014, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).

2. The respondent, Ms Kejah is the mother of the two children.  The requesting parent, who lives in New Zealand, is Mr B, the children’s father.

3. Both the State Central Authority and the respondent agree that the children have been wrongfully removed from New Zealand, in accordance with Regulation 16(1) and (1A), on the following basis:

   i)the application was made within one year of the children’s removal from New Zealand;

   ii)the children are under the age of 16;

   iii)the children habitually resided in New Zealand prior to their removal; 

   iv)the requesting parent, the father, has rights of custody in relation to the children, which he was exercising immediately prior to the children’s removal; and

   v)the removal of the children was in breach of the father’s rights of custody.

4. The State Central Authority submitted that the wrongful retention of the children occurred on 13 February 2019.  That was the date that the father asserted he was informed by the mother, whilst he was on holiday in Australia, that she was not going to return to New Zealand and would not allow the children to return to New Zealand.  The date of wrongful retention was not challenged by the mother.

5. Although the mother concedes that the children have been wrongfully removed from New Zealand, pursuant to Regulation 16(3)(a)(ii), she asserts that the father consented to the removal of the children from New Zealand to Australia.

6. She seeks an order that the court exercise its discretion pursuant to Regulation 16(3) and make an order that the children are permitted to remain in Australia.

7. At the commencement of the hearing, the mother sought to assert:

   a)the father had acquiesced to the children being removed from New Zealand;

   b)the three factors referred to in Regulation 16(3)(c), namely:

   (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;

8. On the first day of the hearing, 3 June 2019, I made an order for the children to attend upon a family consultant at 10.00 AM on the scheduled second day of the hearing, for the preparation of a written report to address the relevant issues and adjourned the matter to commence the following day.

9. The report was released to both parties and the father on the evening of Tuesday, 4 June 2019.

10. On Wednesday, 5 June 2019, I was informed by Counsel for the mother that she no longer sought to assert the factors referred to in Regulation 16(3)(c).

11. During final submissions, Counsel for the mother advised that she no longer sought to assert that the father had acquiesced to the removal of the children from New Zealand, and that the only outstanding issue for determination was whether or not the father had consented.

ISSUES IN DISPUTE

1. The sole issue for determination is whether the father consented to the children’s removal from New Zealand.

BACKGROUND

1. The father and mother met in 2007, and married in 2007 in Country D. The marriage was arranged by the parties’ parents, and they did not live with each other until after they were married.

2. The parties have two children of the relationship, X (born in 2008) and Y (born in 2014).

3. The father is a New Zealand citizen and has been residing in New Zealand since 2004. The mother moved to New Zealand to live with the father in 2007 and was granted New Zealand citizenship in 2014.

4. Both children were born in and are citizens of New Zealand.

5. The father was employed in the fresh produce industry and the parties own a small orchard. Since 2009, the father has operated a business as a farmer. The mother from 2007 to 2014 worked on the family orchard, and from 2014 onwards she has been occupied with the care of the parties’ two children. 

6. In 2008, the oldest child X was born.

7. In 2014, the parties’ youngest child, Y was born.

8. In October 2018, the mother travelled with the children to Country D. Upon her return to New Zealand she conveyed her dissatisfaction to the father, about the parties living arrangements with the father’s parents.

9. On 25 January 2019, the mother travelled with the children to Australia. The mother had previously travelled to Australia on a number of occasions with the children, to visit her brothers who reside in Australia.

10. On 9 February 2019, the father travelled to Australia to visit the children and returned to New Zealand on 14 February 2019 without the children.

11. The mother and children have remained in Australia since 25 January 2019, and the father remains living in New Zealand.

12. The Hague Convention proceedings in the Family Court were filed by State Central Authority on the father’s behalf on 8 April 2019.

PRELIMINARY MATTERS

1. Both the father and the mother were born in Country D and English is their second language.

2. None of the numerous affidavits sworn by the father and the mother included jurat particulars that the affidavits had been interpreted to them prior to swearing and/or affirming.

3. Notwithstanding that the affidavits indicated that the documents were not interpreted to the deponent’s prior to signature, interpreters were arranged for both parties.

4. I was informed by Counsel for the State Central Authority that the father had a reasonably good understanding of English and that he would be able to give his evidence and be cross-examined in English, with an interpreter only assisting when necessary.  This is what occurred.

5. I was informed by Counsel for the mother that the mother could speak some English and would require the assistance of an interpreter where necessary, and that her lawyer, who spoke in the F Language, had been present when she signed her affidavits, although it was not suggested that he had interpreted them to her.

6. The mother stated that she could read English.  During the course of the mother’s cross-examination, it became apparent to me that she must have understood the questions in English as on some occasions she sought to answer the questions in English, without any translation by the interpreter.

7. As a result of my observations and the mother’s spoken English, I requested the mother to speak English where possible and to obtain the assistance of the interpreter where there was some doubt, confusion or inability to understand a question.  This is what initially occurred.

8. As the day progressed, it became apparent that the mother was relying more on the interpreter to both interpret questions and to provide answers on her behalf.  On the second day of the hearing it also became apparent, and I was alerted to this by the mother’s Counsel, that there were conversations between the mother and the interpreter which obviously were not a strict interpretation of what was said in the court.

9. The mother was given every opportunity and was frequently asked whether she understood what was being said, questions which were put to her, and whether she needed any clarification or assistance for her answers.

10. During the course of the hearing there was no complaint or submissions by Counsel for the mother about the manner in which the mother was afforded the assistance of an interpreter, or any complaints about her capacity to understand the proceedings or respond accordingly in English.

11. However, during final submissions, Counsel for the mother submitted that the mother’s evidence may have been adversely affected by her inability to understand the language and legal concepts.  I do not accept that submission.  To the contrary, I am satisfied that the mother was accorded more interpreting assistance than she actually required.

DOCUMENTS RELIED UPON BY THE PARTIES

1. The State Central Authority relied upon the following documents:

   i)Form 2 Application filed 8 April 2019;

   ii)affidavits of the father sworn 22 February 2019, 2 April 2019 and 24 May 2019;

   iii)affidavit of Mr H and Ms K (paternal aunt and uncle of the father) sworn 27 May 2019;

   iv)affidavit of Ms G (paternal grandmother) affirmed 24 May 2019; and

   v)affidavit of Mr J (neighbour) sworn 24 May 2019.

2. The respondent did not seek to cross-examine any of the witnesses, except the father.

3. The respondent relied upon the following documents:

   i)Form 2A Response, filed 29 April 2019;

   ii)affidavits of the respondent sworn 25 April 2019, 11 May 2019,  15 May 2019 and 30 May 2019;

   iii)affidavit of Mr L (respondent’s brother) affirmed 25 April 2019;

   iv)affidavit of Mr N (friend) sworn 14 May 2019.

4. The respondent and all of her witnesses were cross-examined by Counsel for the State Central Authority.

Relevant Legal Principles

1. The relevant Regulations are made pursuant to s.111B of the Family Law Act 1975, to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention.

2. The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal of a child from his/her country of habitual residence. Both Australia and New Zealand are signatories to the Convention.

3. The Regulations provide as follows:

Reg.16          Obligation to make a return order

(1)   If:

(a)    an application for a return order for a child is made; and

(b)    the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and

(c)    the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);

the court must, subject to subregulation (3), make the order.

(1A)   For subregulation (1), 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.

(3)   A court may refuse to make an order under subregulation (1) or (2) if a 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.

(4)   For the purposes of subregulation (3), the court must 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.

(5)   The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.

1. The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg.15(2)).

2. In De L v Director General, NSW Department of Community Services (1996) 187 CLR 640, the High Court cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.

3. In this case there is a factual dispute about consent between the parents, and as submitted by Counsel for the mother, the dispute was essentially one of credibility of each of the witnesses. Accordingly, I permitted Counsel for both the State Central Authority and the mother to cross-examine all witnesses.

4. There was no dispute about the State Central Authority satisfying the court, on the balance of probabilities, that the requirements of Regulations 16(1) and 16 (1A) had been met.

5. In this case, there is a factual dispute about consent between the parents. The mother asserts that the father consented to the children permanently relocating to Australia with her. The father denies that he consented to the permanent relocation of the children.

6. The respondent mother has the burden of proving on the balance of probabilities, that the father has consented to the children being removed from New Zealand. At page 301 of Re H (Abduction: Habitual Residence: Consent ) [2000] 2 FLR 294 Holman J stated :

   On the facts of a particular case a court may consider that evidence of consent needs to be cogent before it can overcome the degree of improbability of consent having been given on those particular facts.  But in the end there is only one question, namely has consent been established? And only one standard, namely the balance of probabilities.

7. The Full Court in Wenceslas and Director – General Department of Community Services [2007] FamCA 398 at [246] observed that consent must arise before the act of removal or retention and may be inferred by words or conduct. However the “consent must be real and unequivocal and can only be made out by clear and cogent evidence”.[1]

Evidence of Consent

[1] Wenceslas and Director – General Department of Community Services [2007] FamCA 398 the High Court reversed the decision in this matter on the evidentiary basis, however was not critical of this principle (MW v Director-General, Dept of Community Services [2008] HCA 12).

The evidence of consent of the mother and her witnesses.

1. In her Form 2A Response the mother states that paragraphs 15, 16, 18 and 19(b) of her affidavit of 25 April 2019, refer to the circumstances of the father’s alleged consent and or acquiescence.  She also relied on the affidavit of her brother, Mr L and her acquaintance, Mr N.  All witnesses were cross-examined by Counsel for the State Central Authority.

The mother’s evidence

1. The mother’s evidence may be summarised as follows:

   a)the father organised the airline tickets for the mother and children to travel to Melbourne, and had accepted the trip was going to be a relocation of her residence, as the airline tickets were booked for a one way trip;[2]

   [2] Paragraph 15 (a) of the mother's affidavit filed 25 April 2019.

   b)the father reluctantly agreed for the mother to take the children with her because he did not have the ability to look after the children because of his work commitments;[3]

   [3] Paragraph 15 (b) of the mother's affidavit filed 25 April 2019.

   c)after boarding the plane to Australia on 25 January 2019, the mother forwarded text messages to the father saying goodbye and indicating that she had left the business and assets which could then be given to his sisters;[4]

   [4] Paragraph 15 (c) of the mother's affidavit, filed 25 April 2019.

   d)after she arrived in Melbourne with the children the mother:

   i)received a phone call from the father wanting her to inform the children’s schools in New Zealand they would not be continuing their education in New Zealand;[5]

   [5] Paragraph 16 (a) of the mother's affidavit, filed 25 April 2019.

   ii)advised the father that he should contact the school in New Zealand and the father confirmed that he had done so;

   e)subsequent to enrolling the children in schools in Suburb R, she had regular conversations with the father and he agreed with her choice of schooling;[6]

   f)prior to her departure from New Zealand the father provided her with the children’s documents including birth certificates, school reports and vaccination records, ostensibly on the basis that she was leaving New Zealand to reside in Melbourne;

   g)the children’s clothes and possessions were taken to Melbourne including school documents and board games, and each of the mother and the children had a 23 kg luggage allowance;

   h)during previous holidays to Australia the luggage packed by the mother was substantially less;

   i)the father gave the mother her gold jewellery, which had previously been locked in the safe;

   j)The children’s clothes which they had outgrown were packed away in two large plastic bags and donated to the Salvation Army.  The father assisted in that process;

   k)On 9 February 2019, the father travelled to Melbourne to visit the children and celebrate Y’s fifth birthday, and remained until 15 February 2019. During that time he did not express any disappointment about the mother’s departure from New Zealand.  He did request the mother to reconsider her decision, and her response was to give it sometime and after a couple of years he would have the option of relocating to Melbourne, or alternatively the mother and children may relocate to New Zealand;[7]

   l)During his visit to Melbourne the father accompanied the mother on shopping trips to purchase children’s uniforms and clothing items for himself and the children.  The joint credit card was used to pay for children’s school fees and uniforms.  The father accompanied the mother when the children were dropped off at school;

   m)The decision to separate was communicated whilst the mother was in New Zealand, prior to the departure of herself and the children to Melbourne;

   n)Furthermore, the selection of schools for the children was discussed with the father and he paid for school uniform and clothing.[8]

   [6] Paragraph 16 (c) of the mother's affidavit, filed 25 April 2019.

   [7] Paragraph 18(a) of the mother's affidavit, filed 25 April 2019.

   [8] Paragraph 18(b) of the mother's affidavit, filed 25 April 2019.

2. The mother was cross-examined by Counsel for the State Central Authority.  She presented as combative, argumentative, feisty and evasive.  She seldom directly answered questions which were put to her. Many of her answers appeared to be fabricated and were inconsistent with affidavits she had sworn and filed in the proceeding.  An example of this was her evidence during cross-examination that the father agreed that he wanted to start his business in Australia, which was not referred to in any of the four affidavits filed by her. I do not accept her evidence as candid and truthful, and where her evidence conflicts with the father’s evidence, I prefer his evidence.

3. During cross-examination her answers about the father’s alleged consent were unconvincing and may be summarised as follows:

   a)she was unable to explain why the father had sent the text message at 10.06 PM on 30 January 2019, which is the annexure C to the father’s affidavit sworn 24 May 2019, which states, “You have to back they are going to separate house (sic)”, if he had consented to the children permanently remaining in Australia a few days prior to her departure on 25 January 2019;

   b)she could not explain her response to the father’s text message, which was: “M not coming” when she asserted that the father had already consented to the children remaining in Australia;

   c)she could not provide any direct response when it was put to her that she could not possibly have thought that the father’s text message was consistent with his consent to a permanent move to Australia;

   d)she could not provide any explanation why she had failed to particularise the circumstances of the father’s consent to removing the children permanently to Australia rather than her vague evidence, that he “reluctantly agreed”[9] at the end of January 2019;

   e)she conceded her allegations that:

   i)the father willingly participated in purchasing new school uniforms for the children in Australia, was disingenuous, as the clothes which were purchased did not have any school logo on them, and were purchased at a generic sports store;

   ii)the father willingly paid for the school uniforms was again disingenuous, as the clothes were purchased by her using a supplementary card to the father’s credit card;

   iii)the father had initiated advising the schools in New Zealand, was inconsistent with the annexures to the father’s affidavit sworn 24 May 2019;

   f)her assertion at paragraph 2(a) of her affidavit sworn 30 May 2019, that the father did not discuss returning to New Zealand when he was in Australia in February 2019, is inconsistent with paragraph 18(a) of her affidavit of 25 April 2019, where she deposes that the father asked her to reconsider her decision;

   g)she persisted with her evidence that the purchase of a return airline ticket was consistent with the father’s usual practice and would have been cheaper than purchasing a return ticket at a later date.  She did not seem to consider that given the uncertainty of the timeframe that the father required to speak to his parents about separate accommodation, the father’s evidence about his intention to purchase a return ticket at a later date was inherently plausible.

   [9] Paragraph 29 of the mother's affidavit, filed 11 May 2019.

4. She persisted with her assertions that the father handing over her jewellery and the children’s documents and the extent of their luggage, was evidence of his consent to the children permanently relocating to Australia. I do not accept that the actions of the mother are indicative of the father’s consent.  To the contrary, such evidence could be construed as disingenuous conduct of the mother. I do not accept the submissions of the mother’s Counsel that the mother was unsophisticated and would not be capable of such duplicity.

5. I also do not accept her evidence that she intends to remain in Australia, even if the children are returned to New Zealand. After having read the report of Mr C, Family Consultant, which was prepared on 4 June 2019, it is simply inconceivable that the mother would choose to remain in Australia, knowing the potential emotional difficulties, which the children may experience.

Evidence of the mother’s brother

1. The mother’s brother, Mr L, affirmed an affidavit on 25 April 2019.  The jurat particulars of his affidavit do not refer to any interpretation of the affidavit to him.

2. At paragraph 11 of the affidavit, Mr L deposes to a conversation he had with the father at the children’s play centre T.  He asserts that the father was happy for the mother and the children to reside in Melbourne permanently and for the children to do their schooling in Melbourne.  He also asserts that the father acknowledge that he would not be able to look after the children on his own because he was busy taking care of two businesses and that he could not count on his parents assisting him with care of the children as they were busy working with him.

3. His relevant evidence under cross-examination may be summarised as follows:

   i)he had no idea that the father was travelling to Australia to persuade the mother to return to New Zealand;

   ii)during the conversation at T there was no mention about the father having secured rental accommodation in New Zealand;

   iii)he had no idea that the father was not intending to come to Australia, as his sister had advised him at the end of December that the whole family was moving to Australia;

   iv)his sister told him that she and the two children were moving straight away and that the father intended to come to Australia later because he had to sell the farms or find somebody to manage them;

   v)when asked why he did not depose to his knowledge that the father also intended to permanently move to Australia, his response was that nobody had asked him;

   vi)prior to his departure from Australia on 14 February 2019, the father had never asked him to persuade the mother to return to New Zealand with the children.

4. The evidence of Mr L about the father’s intention to permanently move to Australia is completely contradictory to the evidence of his sister, and indeed is not referred to in any of the four affidavits which were filed on her behalf.

5. Mr L was attempting to answer questions in a manner most favourable to his sister’s case as he obviously knew the purpose of him filing an affidavit was to help his sister remain in Australia with the children.  His evidence that the father never raised with him the issue of the children’s return to New Zealand is inherently implausible and unbelievable.  Where the evidence of Mr L and the father differs, I prefer and accept the evidence of the father.

Evidence of Mr N

1. Ms Kejah swore an affidavit on behalf of the mother on 24 May 2019.  She is a friend of the mother, although during cross-examination, she repeatedly stated in a garrulous and uncontained manner, that she was friendly with both families.  She did not provide any explanation why she had chosen to become involved in the dispute, nor support one of the parties, when she professed to be on equally good terms with both the father’s family and the mother.

2. At paragraph 6 of her affidavit, she deposes to having met the father in the street in December 2018 in Town S, the parties’ home in New Zealand.  She asserts that during their conversation, the father informed her that the mother and children would be relocating to Melbourne and that the children would be schooled in Melbourne.  He also informed her that after he had completed work on the farm he would visit the mother and the children in Melbourne.

3. During cross-examination of the mother, it was established that immediately after her arrival in Australia on 25 January 2019, on the way home from the airport the mother, her brother and the two children visited Ms Kejah at her home.

4. This was despite the mother’s evidence that their home in Town S was approximately three and a half hours drive to Auckland Airport and after enduring a flight from Auckland to Melbourne of approximately three and a half hours, together with arrival times to enable international flights to be boarded, she thought it was appropriate to visit an acquaintance on the way home from the airport.

5. Ms Kejah’s evidence about the father’s consent in December 2018 to the children permanently relocating to Australia, is contradictory to the mother’s evidence that the father reluctantly consented in late January 2019.

6. No explanation was provided by the mother about this contradiction, nor were any forceful submissions made on her behalf.

7. I do not accept that the sole purpose of the mother’s visit to Ms Kejah after such a gruelling day of travel for the children, was for a social visit.  I also do not accept Ms Kejah’s garrulous and uncontained evidence about the father’s alleged consent.  It was obvious to me that during her evidence she was desperately attempting to provide favourable evidence for the mother’s attempts for the children to remain in Australia.  I do not accept the submissions of counsel for the mother that she was a truthful witness.  Where her evidence differs from the evidence of the father, I prefer the father’s evidence.

The father’s evidence about consent

1. The father was cross-examined at length by Counsel for the mother.  He presented as quietly spoken, not obstructive and most of the time answered questions in a direct and responsive manner.  Where the father’s evidence differs from that of the mother and her two witnesses, I prefer the father’s evidence.

2. His evidence about consent, or lack thereof,  may be summarised as follows:

   i)he was aware of the mother’s dissatisfaction about living with his parents, which she was particularly vocal after her return from Country D in late 2018;

   ii)he agreed to her travelling to Australia to stay with her brother while he attempted to arrange separate accommodation from his parents;

   iii)when he advised her that he had secured rental accommodation, the mother advised she was not returning to New Zealand;[10]

   [10] Annexure C to the father's affidavit, filed 24 May 2019.

   iv)at the time she left for Australia the mother knew that he did not agree to the children permanently relocating to Australia, which is evidenced by the mother’s text to him on 14 February 2019, which is annexure A to the father’s affidavit sworn 24 May 2019;

   v)the father asserts that the text of 14 February 2019 translates as, “I am not coming back. take care husband, be good”, and does not evidence his consent;

   vi)he purchased a one-way ticket, as he was not sure how long it would take him to separate his financial affairs from his parents, although he estimated it would be 2 to 3 weeks.  It was simpler to purchase a one-way ticket once the date had been sorted out;

   vii)he became concerned when the mother advised him over the phone that she did not intend to come back and started sending him pictures of the children in uniform attending school in Australia;

   viii)despite the mother’s evidence that the father had participated in purchasing new school uniforms, the majority of uniforms had been purchased by the mother prior to him arriving in Australia on 9 February 2019;

   ix)he travelled to Australia on 9 February 2019, with the intention to talk to the mother about returning to New Zealand;

   x)he could not have accompanied the mother to purchase the uniforms on 9 February 2019 at 10:15 AM, as alleged by the mother, as he was at the airport with her brother at that time;

   xi)he did not ask the mother to inform the children’s New Zealand schools that they would not be returning, nor did he contact the schools directly;

   xii)he contacted the schools after reading the mother’s affidavit, and both schools confirmed that they understood the children were in Australia however they did not understand the children had left New Zealand permanently;

   xiii)annexure F to the father’s affidavit sworn 24 May 2019 comprises documents from the schools demonstrating the expectation of the schools that the children would return;

   xiv)he did not see the mother as wanting her jewellery as being indicative of a permanent relocation to Australia, and he had no qualms about handing her all her jewellery from the safe when requested;

   xv)he was not alarmed by the mother sorting out the children’s clothing and games as he was not concerned what she took with her;

   xvi)he did not see anything unusual about the mother travelling with the maximum baggage allowance;

   xvii)the primary purpose of his visit to Australia in February 2019 was to talk to the mother to persuade her to return to New Zealand, and not to attend his son’s birthday;

   xviii)when he went shopping with the mother for clothes for himself and the children, however, he was unaware that the clothes purchased were a school uniform and he had no qualms with paying for the children’s clothing.

3. His evidence during cross-examination was consistent with his affidavits.

4. His evidence under cross-examination may be summarised as follows:

   i)The wife did not tell him in November 2018 that she wanted to leave with the children to live in Australia;

   ii)in response to the timing of the wife’s departure and their son commencing school, he said the wife told him the son was due to start school on 14 February 2019 soon after his birthday;

   iii)he bought a one-way ticket because it was cheaper and a return ticket would be purchased when the time and date for her return had been arranged;

   iv)he did not ask why she wanted her jewellery and valuables which were kept in the safe;

   v)he was not aware of the documents which were in the safe, and which the wife obtained;

   vi)he gave her a cloth bag from the safe which contained the passports, jewellery and vaccination certificates

   vii)he did not assist the wife in sorting out the children’s clothes, as she usually did it;

   viii)he did not take her to the Salvos to donate the children’s clothes, although he asked her to;

   ix)he denied he had a private conversation with the wife in the car whereby he had initially agreed that the children could stay in Australia, but he had subsequently changed his mind;

   x)he denied a conversation with the wife’s brother that he was happy for the children to be schooled in Melbourne and that he could not look after the children in New Zealand, so he agreed to the children’s relocation to Australia;

   xi)he was unaware the items the wife purchased when he went shopping with her on 12 February 2019, included school clothes.  He thought they were general clothes and shoes for the children which he was happy to pay for;

   xii)he talked to the wife prior to 30 January 2019 about arrangements he was making for alternative accommodation;

   xiii)the wife was unhappy because she did not want to live with his parents;

   xiv)he was first aware that the wife was not coming back when he talked to the wife on the phone the end of January 2019 and she said that they were not coming back;

   xv)when he arrived in Melbourne on 9 February 2019,  he discussed with the wife her coming back during the 4 to 5 day period he was in Australia;

   xvi)he denied he had initially agreed to the children relocating to Australia but then changed his mind.

Conclusion

1. I do not accept that the evidence of the mother and her two witnesses clearly and cogently prove on the balance of probabilities that the father consented to the permanent relocation of the children to Australia.  Her evidence about the father’s alleged consent was inherently implausible, contradictory and self-serving.  Her interpretation and a distortion of events and conduct, was most unimpressive.  Much of her evidence focused on her intentions and actions in an attempt to construct her case that the father had consented and did not focus on evidence of the father’s explicit consent. Her evidence of the father’s consent cannot be considered real, unequivocal, and supported by cogent evidence.

1. On the contrary, I accept the evidence of the father that:

   i)he consented to the children holidaying in Australia for a couple of weeks, whilst he endeavoured to resolve with his parents the family living arrangements in New Zealand;

   ii)he discussed  the children’s return to New Zealand with the mother, during his time in Australia in February 2019;

   iii)he did not consent to the permanent removal of the children from New Zealand to Australia.

2. Both Counsel were invited to submit proposed Minutes of Orders, including proposals for changeover, in the event I ordered that the children should be returned to New Zealand. Counsel for the mother advised that his client’s instructions were that she did not wish to submit any such minute, and she would not be doing so.

3. Counsel for the State Central Authority submitted a Minute of Proposed order providing for the children’s return to New Zealand.

4. For the reasons referred to in this judgement, I intend to make orders for the return of the children to New Zealand. Those orders will be substantially in accordance with the Minute submitted by the State Central Authority.

5. Both parties were invited to make submissions about whether the report of Mr C dated 4 June 2019 should be available to be referred to or used by either parent in future parenting proceedings. As there was no objection by either party, I intend to order that the report may be referred to in future parenting proceedings. 

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Williams delivered on 26 June 2019.

Date:  26 June 2019.