State Central Authority and Muteki (No 3)
[2018] FamCA 820
•1 October 2018
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & MUTEKI (NO. 3) | [2018] FamCA 820 |
| FAMILY LAW – CHILD ABDUCTION – Wrongful removal conceded – exception of consent found not to apply – exception of grave risk of harm not accepted – child ordered returned. FAMILY LAW – CHILD ABDUCTION – purpose of mediation – conditions to return having regard to mother’s care of young child (eight months). FAMILY LAW – CHILD ABDUCTION – role of independent children’s lawyer |
| Family Law (Child Abduction Convention) Regulations 1986 |
| DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) 206 CLR 401 H v H (Abduction: Acquiescence) [1996] 2 FLR 570 Jones v Dunkel (1959) 101 CLR 298 Re C (Abduction: Consent) [1996] 1 FLR 414 Re E (Children) (FC) (2011) UKSC 27 Re H (Minors) (Abduction: Custody Rights) and Re S (Minors) (Abduction: Custody Rights) [1991] 2AC476 Re M (Abduction)(Consent: Acquiescence) [1999] 1 FLR 171 Re P-J [2009] EWCA 588 TB v JB [2000] EWCA Civ 337 W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 Wenceslas v Director-General, Department of Community Services [2007] FamCA 398 |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Muteki |
| INDEPENDENT CHILDREN’S LAWYER: | Ms C Smith |
| FILE NUMBER: | MLC | 9904 | of | 2018 |
| DATE DELIVERED: | 1 October 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 1 October 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Greenham |
| SOLICITOR FOR THE APPLICANT: | State Central Authority, Department of Health and Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Ms Byrnes |
| SOLICITOR FOR THE RESPONDENT: | Ebejer & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Dwyer |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Victoria Legal Aid |
Orders
IT IS ORDERED THAT
Subject to compliance with paragraph 6 of this Order, the child, X, born … 2018 (‘the child’) be returned to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1989.
The child be returned within 45 days of the date of compliance by the father with paragraph 6 of this Order and the Respondent notify the Applicant and the Independent Children’s Lawyer of her proposed date of departure as soon as practicable upon making such arrangements and provide a copy of the tickets.
The Australian Central Authority notify the New Zealand Central Authority of the mother’s date of departure but the father not be provided with details of the mother and child’s travel.
Within 7 days of return to New Zealand the mother inform the requesting parent’s solicitor, Ms G … of an address for service for her in New Zealand.
The respondent be at liberty to accompany the child to New Zealand. If the respondent cannot or will not accompany the child, she provide not less than 30 days’ notice that eventuality to the applicant State Central Authority. In the event that the Respondent does not accompany the child to New Zealand, the requesting parent be and is hereby authorised to collect the child and return the child to New Zealand.
The return of the child to New Zealand is conditional upon the requesting parent, Mr D, of E Street, Suburb F, City H, New Zealand doing all acts and things necessary to effect the following and the following being effected:-
(a) Paying for the return flights for the respondent mother (unless she gives notice pursuant to paragraph 5 of this Order) and the child from Tullamarine Airport in Melbourne to City H in New Zealand such payment to be made by the father depositing into an account nominated by the independent Children’s lawyer the sum of AUD$700, such payment to be made within 60 days and any monies not required for the economy fares of the mother and the child be remitted to the father;
(b) Obtain a parenting order in a court of competent jurisdiction in New Zealand which provides that:-
(i)Upon the mother and child re-entering New Zealand the child reside with the mother until such time as a court in New Zealand otherwise orders and, in any event, until the expiration of 21 days after the child’s return to New Zealand;
(ii)The father not have access or communication with the child:-
(iii)unless it is with the mother’s prior written consent and then on the dates and for the times agreed to and stated by the mother; or failing agreement;
(iv)until such time as a court in New Zealand otherwise orders and, in any event, not sooner than 21 days after the child’s return to New Zealand.
(v)The father be and is hereby restrained from causing permitting or suffering the mother to be required to attend court and/or to file or serve documentation in relation to parenting proceedings or proceedings for a protection order any sooner than the expiration of 21 days from her re-entry into New Zealand;
(vi)Once the child is returned to New Zealand, both parents be restrained by injunction from causing, permitting or suffering the child to be removed from New Zealand pending an order of a court in New Zealand enabling him/her to do so.
(c) Obtain a protection order pursuant to s14 of the Domestic Violence Act 1995 (NZ) which prohibits him (the father);-
(i)from contacting the mother;
(ii)knowingly approaching or remaining within 100 metres of any place at which the mother resides or is employed or attends for the purpose of education or training or her father’s home at J Street, Suburb K, City H; and
(iii)otherwise in the terms of the usual conditions provided in s19 of the Domestic Violence Act 1995(NZ);
(iv)such order to last for not less than 21 days following the mother’s return to New Zealand.
AND IT IS NOTED that the protective measures referred to herein are obtained by way of reassurance for the respondent mother and to facilitate her return of the child to New Zealand within a short period of time pursuant to this Order made pursuant to the Family Law (Child Abduction Convention) Regulations 1986 which implement into Australian law the provisions of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980. AND IT IS FURTHER NOTED that the protective measures have been required without prejudice to the right of the respondent mother and/or the requesting parent to apply to the court(s) of competent jurisdiction in New Zealand to vary or set aside same or as either parent may be advised after the expiration of the 21 days referred to in sub-paragraph 4(b)(iii) of this Order.
The respondent mother not impede the requesting parent from doing the acts and things referred to in the preceding paragraph of this Order and, if requested to do so, the respondent mother provide any consent to the issuance of the said orders.
There be liberty to apply on short notice for a variation of this Order in the event that it is not possible for the father to make an application for a protection order to operate against himself and, consequently, any necessary application must be made by the respondent mother.
Paragraph 11 of the Order made on 27 August 2018 is hereby discharged and the Respondent or her nominee authorised in writing is permitted to collect the child’s passport immediately upon receipt of a sealed copy of this order.
Pending the child’s departure from Australia for return to New Zealand, the Respondent continue to be restrained and an injunction issue restraining her from causing or permitting or suffering the child:
(a) to be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;
(b) to apply for any further or other passport or passports for the child;
(c) to be removed from the State of Victoria;
(d) to reside at any other than her present residential address or any other residence at which the Applicant has agreed that the said child may reside.
Paragraph 10 of this order remains in force, until a letter from the Applicant is received by the Australian Federal Police advising of the travel arrangements made for the child’s return to New Zealand AND IT IS REQUESTED that the Australian Federal Police remove the name of the child X, female, born … 2018 from the Airport Watch List upon presentation for boarding the nominated flight to New Zealand on the date nominated for the said travel.
A sealed copy of these orders be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the Police Forces and services of the States and Territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
The Marshal 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 States and Territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.
Liberty is reserved to the parties to apply urgently in relation to the implementation of this order.
The time in which a Notice of Appeal can be lodged against this decision is extended to 30 days after the publication of my reasons for decision.
Otherwise the application of the State Central Authority be and is hereby dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Muteki 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: MLC 9904 of 2018
| State Central Authority |
Applicant
And
| Ms Muteki |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
EX TEMPORE
Introduction
This matter comes before me as the final hearing of the application of the State Central Authority for Victoria seeking the return to New Zealand, pursuant to regulation 14 of the Family Law (Child Abduction Convention) Regulations 1986, of the child X (the child), born in 2018.
The application was filed on 27 August 2018, after the child was wrongfully removed on 25 April or 25 May 2018. The discrepancy in the date of the wrongful removal is not of concern because it is conceded that, on either date, the removal was wrongful within the meaning of r.16(1A) and that the application was filed within 12 months of the removal as contemplated by r.16(1)(b). Accordingly, unless one of the five exceptions to return, provided for in r.16(3), apply to this case, the return of the child to New Zealand is mandatory.
The respondent mother opposes the return and does so by reliance on two exceptions.
·First, that the requesting parent had consented to the child being removed to Australia within the meaning of r.16(3)(a)(ii), and
·Second, that the return of the child to New Zealand would expose her to a grave risk of psychological harm or otherwise place her in an intolerable situation within the meaning of r.16(3)(b).
The independent children’s lawyer is of the view that, as a matter of law, the child should be returned to New Zealand. This is not because it is in the child’s best interests for her and the respondent mother to be in New Zealand. Rather it is in recognition with the principles of the 1980 Convention[1] which is a forum selection treaty implemented by the Regulations.
[1]The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
The independent children’s lawyer’s position is that the return of the child to New Zealand should be subject to various conditions. The first condition addresses the practical consideration of payment of the airfares for the child and the mother to travel to City H. She estimates that the one-way fares will be $700 in total and should be paid by the father. The balance of conditions address the mother’s allegations about the risks of harm to which the child will be exposed directly and indirectly through the father.
Having heard the evidence and submissions, I am not satisfied that the exceptions of consent or grave risk of harm apply to this case. Accordingly the child will be returned to New Zealand although I will impose the conditions urged upon me by the independent children’s lawyer. They were adopted by the mother as a fall-back position in the event that she was unsuccessful in opposing return (as she has been).
I pronounced orders late in the day, and indicated that I would dictate my reasons after the parties departed court. These are those reasons. The parties were not present in court to hear me dictate. There will necessarily be some delay in the publication of these reasons because I am out of the Registry for most of the next three weeks. Accordingly, I will extend the time in which a notice of appeal can be filed to 30 days following the publication of these reasons.
The hearing
Because the wrongful removal was conceded, the mother had carriage of the proceedings which related only to exceptions to return.
Ms Greenham of counsel appeared for the Applicant State Central Authority. Ms Byrnes of counsel appeared for the respondent mother. Ms Dwyer of counsel appeared for the independent children’s lawyer, Ms Caroline Smith.
The State Central Authority relied upon application filed 27 August 2018, which included affidavits sworn by the father on 26 June and 27 July, 2018. There was a further affidavit sworn by the father on 24 September 2018, together with an affidavit by his sister, Ms L, sworn 24 September 2018, and his niece, Ms M, sworn 25 September 2018.
Ultimately, only the father was cross-examined.
Counsel for the mother and the independent children’s lawyer indicated that they had wished to cross-examine the father’s sister, but that was not possible because she had left the venue where the father was located. They withdrew their request for cross-examination.
In my view, the affidavit evidence of the father’s sister and niece did not materially advance the case of the State Central Authority.
The paternal grandmother has been significant in the child’s life. The mother stayed at the paternal grandmother’s home for three weeks following the birth of the child. The mother alleged that during this time the father acted violently and unreasonably. The mother alleged that the father punched a hole in the wall at the paternal grandmother’s home when the mother refused to return to the father’s home and that the father “harass[ed] and “question[ed] the paternal grandmother as to why the mother would not return to the father’s home. The father denied those allegations. Presumably, the paternal grandmother could have supported the father’s denials of violence toward the mother. The paternal grandmother was not a witness on affidavit. There was no explanation as to why this was so. I regard the paternal grandmother as a witness in the father’s camp and therefore in the case of the State Central Authority. I infer that the evidence of the paternal grandmother would not have assisted the applicant State Central Authority[2].
[2]Jones v Dunkel (1959) 101 CLR 298.
The mother relied upon her Form 2A answer filed on 19 September 2018, together with her affidavit sworn on 17 September 2018. It was a concise and informative affidavit, as far as it went. The mother did not seek to adduce evidence in response to the father’s affidavit evidence which joined issue with her evidence. The mother was not required to cross examination. However, I accept that there are significant conflicts in the evidence of the parents.
I compliment counsel for the State Central Authority and counsel for the respondent mother for preparation of their outlines of submissions and an outline of case and a brief chronology. Both documents were of assistance.
Background
By way of background, the mother is 26 years old, having been born in Country N. The mother was adopted in Country N, Africa when she was nine years old. She arrived in New Zealand from Country N with her adoptive parents when she was 16 years old. Her adoptive parents separated in 2012, and her adoptive mother came to live in Australia and her father remained living in New Zealand, in Suburb K. The respondent mother is a New Zealand citizen. She holds a special category visa (subclass 444) which allows her to study, stay and work in Australia.
The father is 40 years old, having been born in Country N in 1978. He has not been employed for in excess of three years. He denies the mother’s allegations that he does not want to work, takes drugs and expects to be supported by her. He says that he is a tradesman. He has been in receipt of a disability pension or benefit for “not feeling very well”, but revealed nothing more specific in his evidence.
The parents commenced a relationship on 26 January 2015, and commenced living together a few months later. They separated on or about 23 April 2018.
X is the only child of the respondent mother and the requesting parent. She is eight months old having been born in New Zealand.
Actual exercise of rights of custody
Rights of custody are defined in r. 4. That right of custody must be actually exercised (either jointly or alone) by the requesting parent at the time of the child’s removal or would have been exercised but for the removal. This is a jurisdictional fact (see r.16 (1A)(e)).
Early on, counsel for the respondent mother indicated that the actual exercise by the father of rights of custody may be an issue in the case. However, the issue was not pursued. A sensible course. The mother’s evidence was that the father had not been attentive at or around the time of the child’s birth and had, on a number of occasions, left the family home or required the mother to leave and had been generally disregarding of the day-to-day care of the child. These matters were denied by the father. However, even if the mother’s evidence was accepted, the actual exercise of rights of custody must not be given too narrow an interpretation. A broad interpretation is consistent with authorities such as Re H (Minors) (Abduction: Custody Rights) and Re S (Minors) (Abduction: Custody Rights) [1991] 2AC476.
Principles of proof
The respondent bears the burden of proof in relation to both consent and grave risk.
The standard of proof is on a balance of probabilities.
Findings of fact
In these reasons, a statement of fact is a finding of fact.
Consent
As outlined by the Full Court in Wenceslas v Director-General, Department of Community Services [2007] FamCA 398 at [264], consent must arise before the act of removal, and can be by words or inferred conduct; however, the consent must be real and unequivocal, and can only be made out by clear and cogent evidence.
Consent is a question of fact to be determined on the material before the court. The issue is what is or was the actual subjective intention of the left-behind parent who purportedly gave the consent. The court is primarily concerned not with the question of the taking parent’s perception of the left-behind parent’s conduct, but with the question of whether the left-behind parent consented.
Whilst the court can infer the actual subjective intention from outward and visible acts of the left-behind parent, that is quite a different matter from imputing to the left-behind parent an intention which he did not, in fact, possess. As Holman J said in Re C (Abduction: Consent) [1996] 1 FLR 414, at 419:
If it is clear, viewing a parent’s words and actions as a whole and his state of knowledge of what is planned by the other parent, that he does consent to what is planned, then in my judgment that is sufficient to satisfy the requirements of Article 13. It is not necessary that there is an express statement that “I consent”.
As the learned authors Lowe and Nicholls observe at [23.20][3] an example of an inference of consent is Re M (Abduction)(Consent: Acquiescence) [1999] 1 FLR 171, in which the father knew that the mother intended to move from Greece to England permanently. His attitude was one of “go if you want”, which, combined with his conduct in standing by while she openly made preparations to leave, and a conversation with a friend that his wife could leave if she wished, but he did not think she would survive long on her own, was sufficient evidence from which consent could be inferred.
[3] International movement of children : law, practice and procedure, Second Edition
And, as Ward LJ said Re P-J [2009] EWCA 588 at paragraph 48(5):
Consent, or lack of it, must be viewed in the context of the realities of family life or, more precisely, in the context of the disintegration of family life. It is not to be viewed in the context of, nor governed by, the law of contract.
Statements made in anger in the heat of an argument, which were neither intended nor understood as giving permission to remove or retain the child, cannot be regarded as consent. On the other hand, consent for the purposes of Article 13a does not necessarily mean that each party is content with the outcome agreed. A parent may have the gravest reservations about the child being taken to live in another country but may nevertheless consent.
In this case, the mother asserts that the parties separated on 23 April 2018 when she called and told the father that the relationship was over:
He was upset but accepted that the relationship was over, and told me that I could live on my own and he would live on his own. He also said to me that I could raise the child and take her to Australia and raise her amongst my family in Australia or my adoptive father in New Zealand. He did not ask to spend any time with the child.
I reference the mother’s remarks to her affidavit sworn 17 September 2018, at paragraph 14.
However, this assertion is denied by the father in his affidavit material, and in particular in his affidavit sworn 24 September 2018, at paragraph 28, when he says:
I never told [Ms Muteki] she could take the child to Australia. I would have stopped [Ms Muteki] from going to Australia with the child.
The mother’s evidence is not corroborated, and is somewhat contradicted by her own evidence. At paragraph 34 of her affidavit sworn 17 September 2018, she deposes:
I did not tell [Mr D] that I was leaving, as I thought he would stop me from going, even though he had previously told me that I could go to Australia with the child and raise her here.
The father promptly made an application to the appropriate authorities in New Zealand for the initiation of a return application under the Hague Convention.
I am not satisfied on the evidence that the husband consented to the child being removed from New Zealand at all much less being removed permanently. Accordingly, the mother’s case in respect of consent fails.
Grave risk of harm
The second exception to return upon which the mother relies is that of grave risk. She contends that the return of the child to New Zealand will expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. It was put on her behalf that she is fearful of the father because of his habits of drinking too much alcohol, being verbally abusive to her and having no interest in the child.
The child is eight months old.
The leading judgment on the interpretation of Regulation 16(3) is the majority judgment of the High Court in the case of DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) 206 CLR 401 (per Gaudron, Gummow and Hayne JJ). The key principles to be gleaned from that case are:
a)The first task is to determine whether the evidence establishes that there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (para 40). That requires some prediction, based on the evidence, of what may happen if the child is returned (para 41).
b)Certainty of harm is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. The risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm (para 40).
c)Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence (para 43).
d)The disruption, uncertainty and anxiety that will likely recur, and may well be magnified, by having to return to the country of habitual residence is not sufficient to establish the grave risk exception (para 45).
e)If the grave risk exception is established, the Court will still retain a discretion to return. The Court may still in its discretion order return even if the exception is established on the facts. Matters that bear on the exercise of that discretion include conditions on which return may occur, whether judicial proceedings will take place in the country of return and whether there are suitable interim arrangements for the child. If return is ordered, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced (para 40).
In this case the evidence from the parents is contradictory. The State Central Authority did not seek to cross-examine the mother, but I accept nonetheless it is challenged. Counsel for the mother, and counsel for the independent children’s lawyer, cross-examined the father to little effect.
In my reasons for decision delivered on 6 September 2008 (case neutral citation [2018] FamCA 730) – I made known to the parties that I endorsed the four-step process outlined by the Supreme Court of the United Kingdom in Re E (Children) (FC) (2011) UKSC 27, with some modifications for Australian conditions.
That goes largely to addressing the difficulty that the Court has in dealing with these matters under pressure of time and where the evidence of the parties is conflictual. I quoted the following extract from Re E (Children) (supra):-
There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. Mr Turner submits that there is a sensible and pragmatic solution. Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co-operation between liaison judges are so helpful. Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues.” (my emphasis)
The respondent mother’s affidavit sworn 17 September 2018 alleges that the father spent days with friends drinking and smoking marijuana, would demand money and if it was not forthcoming would yell, swear and throw things, broke doors on two occasions by pushing them backwards and forwards, drank more heavily once the mother was pregnant and on one occasion the mother alleges that the father punched a hole in the wall of his mother’s house.
The father’s affidavit sworn 24 September 2018 contradicts the evidence of the mother. The father denies that the relationship was violent, that he ever smoked marijuana, only occasionally drank alcohol, did not demand money and that the respondent and he rarely argued, that he did not use the language as suggested by the mother and that only on one occasion did he slam a loose door which was easily fixed. During cross examination the father maintained he did not drink regularly. He stated when he did drink he only drank “three, four or five” bottles of Heineken at a time.
Prior to the hearing, the father was given directions to enable his evidence to be given by video link. The father indicated he did not have a phone capable to give evidence by video link, however stated that he would arrange to use his sister’s phone. Despite saying he would do so, he did not do this prior to the hearing and was unprepared to give evidence. Due to the father’s unpreparedness, he had to be instructed during the court time to download the appropriate application to give evidence. Once the link was established, under cross examination the father was not an impressive witness although some of his vagueness may be referrable to poor connectivity.
Even if the mother’s evidence is accepted, it would fall short of discharging the onus that she has to make out the grave risk exception when I have regard to the imposition of protective measures sought by the independent children’s lawyer. My earlier reasons must have made it tolerably clear to the State Central Authority and the father that I would be looking to the importance of protective measures in preference to conducting a full defended hearings to find facts.
It is not contended by the mother that the provisions of the Domestic Violence Act 1995 (New Zealand) are inadequate to protect her.[4] However, she says a protection order is only going to provide protection if the father is prepared to abide by it, and her position is that he is unlikely to do so when affected by alcohol, which he abuses. The mother has not previously applied for or obtained a protection order in New Zealand. It is too long a bow for me to draw that I should assume that an order for which the mother never applied and has no experience of, may not be effective.
[4] Case outline filed by the respondent mother at [18].
The mother refers to the fact that she has no accommodation in New Zealand, and she would be without funds or housing with little or no family support. Her adoptive father lives in Suburb K, but his abode is not appropriate for a child. In discussion with counsel, it appeared to be accepted that New Zealand has a workable social security system, which the mother can immediately access, given her status as a New Zealand citizen.
I do not think that life will be easy for the mother, but it will not be impossible. More significantly, it will not be “intolerable” within the meaning of r.16(3)(6). The mother’s case in this regard fails.
Conditions on return
The Regulations permit the court to make conditions which the court considers to be appropriate to give effect to the Convention (r.15(1)(c)). The preamble of the Convention sets out that the purpose of the Convention is to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access”. The return to the home state of New Zealand is a consequence of the wrongful removal. An abrupt and uncomfortable return to the home state can render as much harm, if not more harm, than the initial removal or retention. Indeed, most children who are subject of Hague return proceedings do not realise they have been “abducted” until well after the event and the turmoil, conflict and the greatest anxiety is around the return itself. The child is only eight months old. She is completely dependent upon the mother. A safe return for the child will be assured by a safe return for the mother.
Conditions to return were drafted in consultation with the counsel for the applicant, the respondent mother and the independent children’s lawyer. The conditions give the mother three weeks breathing space on her return during which she will have to make her own way.
The parents themselves appear to have done little or nothing in relation to protective orders which might mitigate against any alleged risk that the father poses.
Early in the proceedings, and with the consent of the parties, I conducted direct judicial communication with Judge Smith, sitting in the Family Division of the District Court in New Zealand. In due course I provided the parties with his written responses as to the legislative provisions under which protective orders could be made in New Zealand and how the mother could go about applying for such protective orders.
The independent children’s lawyer had also investigated the matter and ascertained that it may be possible to obtain an order under Victorian state law enforced in Australia and then have it registered as enforceable in New Zealand. The mother was given the option of seeking such an order herself at a local Magistrates Court, two city blocks from this Court, but has not done so. I will make the mother’s return to New Zealand conditional upon there being a protection order for her benefit. I am reluctant, however, seeing as the mother did nothing to obtain an order for herself in Australia, to require her to do something to which she will not apply herself diligently or effectively and then seek to rely on the omission. I do not want lack of effort on her part to mean that conditions to return are not met. By the same token, I do not want her to encounter difficulty or opposition by the father in getting a protection order in New Zealand, with the result that the condition is not met.
I will make the father responsible for obtaining an order effectively against himself in New Zealand. If it turns out to be the case that this is not feasible, because he does not have standing to do so, I have reserved to the parties liberty to apply and will take the matter on short notice and make other machinery orders. The end result should be, a protection order for the benefit of the mother. Perhaps the parents will have to cooperate in this endeavour. The mother should not lose sight of the fact that this condition is for her benefit and, through her, for the benefit of the child. It is not for the father’s direct benefit.
Other matters which for the sake of caution and the mother’s peace of mind, I am prepared to put in place to ease the return for her and this very young child, are:-
a)A moratorium period of three weeks after she arrives back in New Zealand, during which time there is not to be any court proceedings initiated by the father which require her to attend court or file documents, or contest a protection order;
b)For the first three weeks following the child’s return to New Zealand, the child live with the mother and not see the father, save with the mother’s prior written consent.
Of course, those parenting arrangements will stand to be altered by orders made by the competent courts in New Zealand, but only after the expiration of 21 days.
To the extent that it seems harsh that the father not spend time with the child until three weeks after her return to New Zealand, the father has done little to advance his own case or ensure that he can see his daughter any earlier.
On 27 August 2018 I appointed an independent children’s lawyer to investigate whether the requesting parent would agree to mediation (Order 15(b)). I delivered ex tempore reasons, which were published on 29 August 2018. I made the following observations in my reasons, (the case neutral citation for which is [2018] FamCA 730]:-
23.In this case I have made particular mention of mediation. It is my impression that the parties to return proceedings often overlook the appropriateness of mediation. However, the benefit to the child of the parents entering into mediation is well recognised within the Hague community. The Permanent Bureau of the Hague Conference on Private International Law has published a “Guide to Good Practice Child Abduction Convention – Mediation; HCCH; 2012” and I have earlier referred to Article 7(c) of the 1980 Convention.
24.Victoria Legal Aid has a mediation service tailored to Hague return applications which is accessible through the independent children’s lawyer free of charge. There is also International Social Service mediation service which may attract a modest fee. Mediation addresses a resolution of the issue of return but, failing agreement, may resolve other issues and should help the parties prepare for outcomes.
25.The independent children’s lawyer will promote attention to what orders should be made or could be made for the benefit of the child on the final outcome of these proceedings. There really are only two outcomes: one is the child goes back to New Zealand, and the other is the child stays in Australia. If the child is returned to New Zealand, it is likely that the mother will in the future seek to return to Australia for holidays and to bring the child with her. That will not be possible unless there is a clear set of complementary orders between Australia and New Zealand in force, which will ensure the return of the child after any visit to Australia. Likewise, if the child is to remain in Australia and the application is dismissed, the requesting parent will want to see the child and there should be consideration by the parents now as to what would be appropriate parenting arrangements if the child were to remain in Australia.
26.Preparation for outcomes is to avoid uncertainty for the parents and, through them, for the child. Without preparation and planning, parenting arrangements for the child on any return to New Zealand will be uncertain and could lead to unnecessary strife. It is preferable that protective measures be put in place so that both parents know when and how the father will see the child pending the parenting matter being properly and adequately seized by the Court in New Zealand. Likewise, if the return is refused, to avoid the father being left in limbo as to when, or if, he will see the child.
27.My request for an independent children’s lawyer at this stage is conservative. I want to avoid an unnecessary prolongation of the proceedings. It is my experience that an independent children’s lawyer will expedite the process.
The documents included with the application had stated that the father would send a family member to Australia to collect the child. I also directed the independent children’s lawyer to ascertain if the father would pay airfares for the mother and child if, eventually, I ordered that the mother be entitled to accompany the child and do so by the next return date.
On 30 August no response was forthcoming.
On 6 September 2018 I was informed by the applicant that the father refused to mediate but would pay the airfares. In my ex tempore reasons of 6 September 2018 I said:-
8.Instructions were received, apparently, this morning to the effect that the father will not participate in a Hague mediation. That is a pity because it would have been an opportunity for him to discuss, through mediators, what child care arrangements would pertain to the child upon her return to New Zealand (if she is returned), between the date of her return and the date upon which the courts in New Zealand are appropriately seized of the matter and can make orders consistent with the child’s best interests. If he changes his mind about mediation, he should notify the Central Authority in his own country and the independent children’s lawyer without delay.
The father in his evidence today confirmed that he was in a position to pay the airfares required of him in the sum of $700, but that he would now have to start saving for such. He agreed that he would not see the child for the first three weeks following the child’s return and then would await the determination of the courts in New Zealand as to where the child will live and how frequently she will see the father. He agrees to a protection order.
The information from the applicant State Central Authority on 6 September led me to believe that the father would and could pay the airfares. That appears not to be the case. He now has to start saving $700. He thinks he can do so in 60 days. I will allow the mother 45 days from payment of the airfares to return to New Zealand. If the father pays before 60 days, the 45 days starts to run sooner.
I am satisfied that the conditions insulate the child from some of the harmful effects of the wrongful removal.
Matters of procedure
There are certain matters of procedure which I should mention in relation to this case. On the day of the application being issued, the matter was returnable before me and dealt with on an ex parte basis, to the extent that an independent children’s lawyer was appointed and certain injunctions were put in place to secure the whereabouts of the child pending the final hearing. The independent children’s lawyer has played a very active role in these proceedings. She contacted the mother prior to the first date that the mother was required to attend court. She ascertained that the mother was unable to get to court because she did not know how to make her way by public transport and informed the Court accordingly.
The independent children’s lawyer arranged for the first hearing to be conducted by telephone, and immediately afterward set about assisting the mother to make contact through Victoria Legal Aid with a practitioner who would be able to act for her in these proceedings. As it happened, that practitioner did not ultimately act for the mother but another practitioner did. It was the independent children’s lawyer who conducted inquiries in relation to personal protection orders for the mother and the cost of airfares. On the first date that the mother was before the Court, we discussed mediation in the Victoria Legal Aid Hague mediation model. The mother was prepared to participate in that mediation, which would have been free, being conducted over three sessions with two mediators of social science and legal expertise. Unfortunately, as discussed, the father was not prepared to participate in mediation.
As indicated, the purpose of the mediation was not only to endeavour to resolve whether or not the child should be returned to New Zealand, but it was also to prepare for outcomes. Had the father attended the mediation, and been prepared to discuss matters, issues such as what time and for how long and when he could see the child upon return would have been canvassed, as would other conditions to return. It is unfortunate that he did not do so. The conditions to return are supportive of the mother and recognise her day to day care of the young child, at least for the time being. The mother presents as not at all pro-active. Notably, she could not use public transport to get to the city only one month ago in spite of having been in Melbourne for some months. She is, at best, passive.
Discretion to refuse return (hypothetically)
Had I been satisfied that either of the exceptions had been made out, I would have had a discretion to refuse return. The factors which I would have taken into consideration are set out in TB v JB [2000] EWCA Civ 337 where Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. Hale LJ (as she then was) accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574. The factors were:-
(a) the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b) the likely outcome (in whichever forum) of the substantive proceedings;
(c) the consequences of the acquiescence;
(d) the situation which would await the absconding parent and the child if compelled to return;
(e) the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f) the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.
To the above factors there should be expressly added whether the country of habitual residence, New Zealand, permits relocation internationally. That is, if a child is repatriated under the 1980 Convention, is it realistic for the taking/returning parent to apply to the courts of the state of habitual residence for permission to remove the child for the purpose of the child residing out of that jurisdiction permanently? This was clearly a matter contemplated by all members of the court in TB v JB who was satisfied that it would be possible for the mother to make an application to the courts in New Zealand for permission to relocate to the United Kingdom. I am satisfied that New Zealand permits relocation pre-conditioned on a best interest of the child test.
The mother’s removal of the child from New Zealand was blatantly wrongful.
On the facts of this case and on the evidence that I have heard, this is not an instance in which I would have felt preliminarily disposed to exercise my discretion in favour of the mother being permitted to retain the child in Australia. I say ‘preliminarily disposed’ because the facts would have necessarily been different had they enabled me to find that an exception to return was made out.
I accept that a return to New Zealand will constitute a hardship for the mother and, through her, for the child. The conditions imposed should ease the hardship to a degree which is tolerable. They will only last three weeks by which time the New Zealand judicial system, in which our court has confidence, will take over.
Conclusion
The child is very young. The child’s parenting arrangements must be settled as soon as practicable in a principled and child focused manner. In accordance with the forum selection principles implemented by the Regulations, I have concluded that the State Central Authority’s application must be granted, conditionally.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 1 October 2018.
Associate:
Date: 11 October 2018
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