State Central Authority and Park

[2009] FamCA 1207

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & PARK [2009] FamCA 1207

FAMILY LAW – CHILD ABDUCTION – Hague Convention – threshold issues – whether the court should exercise jurisdiction where a welfare order had been made under State Child Protection Legislation – whether there should be a stay of proceedings based on a claimed conflict of interest of the Secretary – question of children’s habitual residence – Regulation 15 Family Law (Child Abduction Convention) Regulation 1986 - whether the children ought to be returned to New Zealand, if they were not habitually resident in New Zealand, as New Zealand was the country of the closest connection to the children

Family Law Act 1975 (Cth) ss 61C, 111B

Family Law (Chid Abduction Convention) Regulations 1986 (Cth) regs 14, 15(1), 16(1A)(a), 16(3)(a)(ii), 16(3)(b),(c),(d)
Children, Young Persons and Their Families Act 1997 (Tas) ss 16, 16(1), 16(2)(c),16 (5), 16(7), 53B, 53B(1)(a)
Personal Information Protection Act 2004 (Tas)

Evidence Act 1995 (Cth)
Care of Children Act 2004 (NZ) ss 15(b) 16, 17(1)
Freedom of Information Act 1991 (Tas)
Judiciary Act 1903 (Cth) s 78B

McCall and State Central Authority; Attorney-General (Cth) (Intervener) (1994) 18 Fam LR 307; (1995) FLC 92–551
De L v Director-General, New South Wales Dept of Community Service (1996) 187 CLR 640; [1996] HCA 5; (1996) 20 Fam LR 390; (1996) FLC 92–706
Commonwealth v Western Australian (Mining Act Case) (1999) 196 CLR 392; [1999] HCA 5
Telstra Corporation v Worthington (1999) 197 CLR 61; [1999] HCA 12
Rothschild v Mullins & Anor [2002] TASSC 100
Punter v Secretary of Justice [2007] 1 NZLR 40
LK Director General, Department Community Services (2009) 237 CLR 582; [2009] HCA 9
DP v Commonwealth Central Authority (2001) 206 CLR 401; [2001] HCA 39
MW v Director-General of the Department of Community Service (2008) 244 ALR 205; [2008] HCA 12

B v B (Re Jurisdiction) (2003) FLC 93–136
Director General, Department of Community Services v Moore (1999); (1999) 24 Fam LR 475: (1999) FLC 92-841
Director-General, Department of Community Services Central Authority v RMS (1999) 27 Fam LR 259; (2000) FLC 93-026

APPLICANT: Secretary, Department of Health & Human Services (Tasmania) as the State Central Authority

RESPONDENT: Ms Park

FILE NUMBER: HBC 946 of 2009

DATE DELIVERED: 9 December 2009

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 6 & 13 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S Gates

SOLICITOR FOR THE APPLICANT: Crown Solicitor

COUNSEL FOR THE RESPONDENT: Mr P Fitzgerald

SOLICITOR FOR THE RESPONDENT: Ian Guest & Associates

Orders

1. The Secretary, Department of Health and Human Services (Tasmania) (“Secretary”) is granted leave to disclose information in relation to the Child Welfare proceedings.

2. The mother Ms Park’s (“the mother’s”) application for a stay of proceedings is dismissed.

3. The children,  B born on … July 2005, T born on … April 2007 and C born on the … July 2008 be returned to New Zealand.

4. The Secretary make such arrangements as are necessary to ensure the return of the children to New Zealand forthwith in the company of such person and upon such conditions as the Secretary considers necessary having regard to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

5. The mother forthwith hand over to the Secretary any passports she has for the children to facilitate their return to New Zealand in accordance with these orders.

6. Upon the presentation of the children at any Australian International Airport for departure by the Secretary or his nominee for the children to return to New Zealand in accordance with these orders the Australian Federal Police are requested to delete the P.A.S.S. alert system currently in force in relation to the children and permit their departure from Australia to New Zealand in the company of a person nominated by the Secretary.

7. Upon the departure of the children from the jurisdiction of Australia in accordance with these orders the Australian Federal Police delete any P.A.S.S alert currently in force in relation to the children.

8. Leave be given for the Secretary to apply on two days notice in relation to any further machinery orders to give effect to these orders, provided the application for such leave is not made within a period of seven (7) days from the date of these orders.

9. This matter be otherwise removed from the list of cases requiring determination.

   IT IS CERTIFIED

10. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Park is approved pursuant to s121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 946 of 2009

Secretary Department of Health & Human Services (Tasmania) 

Applicant

And

Ms Park

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This was an application by The Secretary of the Department of Health and Human Services (Tasmania) as the State Central Authority (“the Secretary”), under the provisions of the Convention on Civil aspects of International Child Abduction, the Hague Convention (“the convention”), which has been incorporated into Australian laws by the operation of the Family Law (Child Abduction Convention) Regulations 1986 (“the Child Abduction Regulations”).

2. The Secretary seeks orders that B (aged four), T (aged about two and a half) and C (aged about seventeen months) be returned to New Zealand, a country which the Secretary says the children are habitual residents of, and that the children are wrongfully detained in Australia.

3. Ms Park, the children’s mother (“the mother”) opposes the application and seeks orders that the proceedings be either dismissed or stayed.

4. This matter was heard on 6 and 13 November 2009.  The children are the subject of welfare orders made in a Tasmanian State Magistrates Court (Civil Division). Those welfare proceedings involved an interim assessment order being made pursuant to s26 of the Children, Young Persons and Their Families Act 1997 (Tasmania) (“Children, Young Persons and Their Families Act”).

5. In the light of that fact I raised with counsel, at the commencement of the submissions on 13 November 2009, the status of the statement made from the bar table on behalf of the Secretary that he would comply with an order to return the children to New Zealand if this Court made such an order.

6. After some discussion with counsel it was clear that there was no issue that the Secretary would send the children back to New Zealand if that was an order made by this Court.  There was an issue on behalf of the mother as to whether, in the light of the orders made by the State Magistrates Court (Children’s Division), the Secretary is empowered to do so. I am satisfied that under the present orders he does have that power.  In the event that it is not the case, I have given leave for the Secretary to apply to this court for further machinery orders.

7. I infer from the commencement of these proceedings and the continued prosecution by the Secretary that it is the Secretary’s intention to comply with these orders and send the children back to New Zealand if that is to be the order made by this court.

THE ISSUES

1. There are two preliminary issues. 

2. The first issue is an application by the mother for the Court not to exercise its jurisdiction as any powers the Court may have in that regard are extinguished by virtue of an order made under the Tasmanian State Welfare jurisdiction.

3. The second threshold issue, raised by counsel for the mother, is that the position of the Secretary is compromised (whether in reality or by perception) and that the proceeding should be stayed pending the appointment of another applicant.  Further, counsel for the mother argued it is inconsistent with the proper administration of justice that the Secretary continues to prosecute this application and at the same time be involved in State Welfare proceedings.

4. It was submitted by counsel for both parties that if I determine that there is a fundamental constitutional issue with regard to the first of the threshold issues I should relist the matter and require notices to be given to the Federal and State Attorneys General pursuant to s78B of the Judiciary Act 1903 (Cth).

5. For the reasons set out herein I am not satisfied that this point is a matter arising under the Constitution or involving its interpretation. There was no issue raised by counsel for the mother that the Court did not have the constitutional power to exercise the court’s jurisdiction in relation to the Child Abduction Regulations. The issue was whether, in circumstances where an order has been made in the State Welfare jurisdiction, the court ought to exercise that power.

6. I am satisfied that this is not a matter where notice ought to be given, at this time, to the State and Federal Attorney General.

7. If I determine that the Court should exercise its powers and that there ought not to be a stay then the remaining primary issues left for consideration are:-

   a.The children’s place of habitual residence;

   b.Whether the children have been retained in Australia on the basis that their father Mr Park (“the father”), has consented or acquiesced to the children living in Australia.

   c.Whether the father was exercising rights of custody.

8. If I determine that the children’s place of habitual residence was not New Zealand, the Secretary argues, that in any event, I ought to order the children’s return to New Zealand pursuant to reg 15(1) of the Child Abduction Regulations, New Zealand being the country where the children have the closest connection, particularly in circumstances where the children are now in foster care in Tasmania.

9. There was also an issue about whether this Court was bound by the provisions of section 16 of the Children, Young Persons and Their Families Act although it was clear that the Court should, where possible, give comity to State Legislation. 

10. Section 16 of the Children, Young Persons and Their Families Act provides confidentiality to a person informing of knowledge, a belief or suspicion of abuse, neglect or certain behaviour.  That section provides that the Secretary may apply to a court for leave to disclose information pursuant to subsection 16(2)(c) of the Children, Young Persons and Their Families Act.

11. Subsection 16(5) of the Children, Young Persons and Their Families Act provides that leave should not be granted unless the court is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice.

12. Counsel for the Secretary and the mother suggested I need not determine neglect but that I should set out whether I considered that the provision of information is of critical importance. I do consider the disclosure of critical importance bearing in mind that this determination will mean the children either remain in Australia or return to New Zealand.

13. The information is critical in terms of the determination of a number of factors. These include; the reliability of the evidence of Ms N and the reliability of the evidence of the mother. Such evidence is pivotal in determining habitual residence and rights of custody that are necessary for an order pursuant to reg 15(1) of the Child Abduction Regulations.

14. I therefore give leave to the Secretary to rely on those provisions.

15. In giving that leave it is not to be regarded as a finding that a court exercising jurisdiction under the Family Law Act1975 (Cth) (“the Family Law Act”) is bound by those provisions.

BACKGROUND

1. The father is aged 25 and the mother is aged 21.  They were both born in New Zealand.  The parents married in May 2006 and initially separated in New Zealand in October 2008.  At the time of their marriage and separation they lived in New Zealand. 

2. There is an argument about whether the parties reconciled in May 2009, as asserted by the father, or February 2009 as asserted by the mother.  The date of reconciliation has some bearing on the circumstances of the parties moving to Tasmania. On balance I prefer the evidence of the father.

3. It is common ground that the father had been employed in the agricultural industry in New Zealand and that the father was looking for employment in the agricultural industry in New Zealand up to about May 2009.

4. In May 2009 the father was interviewed by several New Zealand farmers, one of whom owned a property in Tasmania.  As a consequence of that interview the father arranged to travel to Tasmania for that work and on arrival entered into an agreement with those property owners to remain in Tasmania and work for the famer under contract for one year with the possibility of extending that time to two years.  I accept and prefer the evidence of the father that the family was travelling to Australia for one year, perhaps two.

5. The father’s evidence is that this was a sudden decision and that he, the mother and the children were only travelling to Tasmania for a year with a possibility of extending this for two years but with the underlying agreement that they would return to New Zealand.  The mother asserted the arrangement was that the parties would travel to Tasmania to start a new life with a clean break from their problems.  One of the issues to be determined was what the parties’ joint intentions were at the time they negotiated the contract, left for Tasmania and during their time in Tasmania.

6. On 23 June 2009 the family travelled to Tasmania and the father commenced work on 1 July 2009.  He remained in that employment until 22 July 2009 (about one month later) when the father was given one weeks notice.  The father’s employment was terminated on 29 July 2009.

7. The family had been living in a cottage on the property.  The father claims that after making enquiries in Tasmania he and the mother agreed on or about 30 or 31 July 2009 to return to New Zealand.  The mother disputes that assertion of fact.

8. On 3 August 2009 the parties separated.  There is an issue as to whether, between that date and 12 August 2009, the father notified the mother of his desire to return to New Zealand with the family.

9. The father saw the children on a number of occasions and then on 12 August 2009 he returned to New Zealand.  There is an issue as to events that followed but it is clear that the father then approached the New Zealand authorities for the return of the children under the Convention.

10. The mother remained in Australia with the children.

11. On 15 and 16 August 2009 the father had conversations with Ms N and he made it clear to her that he wanted to collect the children and she said she would assist him in that respect.

12. The father had a telephone conversation with the mother on 18 August 2009.

13. In September 2009 as a result of concerns in respect of the mother’s care of the children, notifications were made to the Child Protection Services in Tasmania (“the Department”).  A further notification was made on 24 September 2009 and after investigations by the Department on 7 October 2009, following a medical examination, the children were taken into Departmental care and were placed in foster care, where they remain. 

14. On 12 October 2009 interim orders were made in the Magistrates Court (Children’s Division) in Tasmania, in respect of each of the three children, placing their custody in the care of the Secretary and authorising the children to be examined and assessed.  The children remain in the care of the Secretary.

15. There are allegations that the mother has physically harmed one of the children by striking the child with a wooden spoon across the side of the head and the Department was concerned about significant bruising to the children.  The mother has denied the allegations of abuse.  There are a number of other allegations of abuse.  It is not a matter for me to determine the question of the alleged abuse by the mother.

16. On the 14 October 2009 the Secretary made application under the Child Abduction Regulations pursuant to reg 14. The application and was heard on 6 and 13 November 2009. Regulation 16 the Child Abduction Regulations sets out the obligations to make an order.

17. As to reg 16(1A)(a) the Child Abduction Regulations I am satisfied that the three children are under the age of sixteen years.

18. Any statement of fact in these reasons is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.

POWER ARGUMENT

1. There is no issue that there is a constitutional power upon which the Child Abduction Regulations are based.[1]  However there is an issue in relation to the exercise of that power by a court in circumstances where orders have been made under State Child Welfare laws.

   [1] The Full Court (Nicholson CJ, Ellis and Fogarty JJ) has held that s 111B of the Family Law Act is a valid exercise of the ‘external affairs’ power of the Commonwealth (s 51(xxix)), and the Family Law (Child Abduction Convention) Regulations1986 (Cth) are validly made under it: McCall and State Central Authority; Attorney-General (Cth) (Intervener) (1994) 18 Fam LR 307; (1995) FLC 92–551. See also De L v Director-General, New South Wales Dept of Community Services (1996) 187 CLR 640; [1996] HCA 5; (1996) 20 Fam LR 390; (1996) FLC 92–706 (High Court), where all members of the High Court treated s 111B and the regulations as constitutionally valid.

2. Counsel for the mother argued that there may be a constitutional issue with respect to the court’s powers to make an order under the Child Abduction Regulations.

3. The factual basis of this argument rested upon the fact that orders had been made by the Magistrates Court (Children’s Division) under the Children, Young Persons and Their Families Act placing the children in the care of the Secretary.  Counsel for the mother said that this put the operation of the State Law in conflict with the operation of the Child Abduction Regulations.

4. Counsel for the mother argues that there needs to be more consistent laws.  In that respect he relied upon Commonwealth v Western Australian (Mining Act Case) (1999) 196 CLR 392 at 396; [1999] HCA 5 and Telstra Corporation v Worthington (1999) 197 CLR 61 at page 76; [1999] HCA 12.

5. Counsel for the Secretary submitted the laws were not inconsistent and there was no evidence of any inconsistency.  He observed, as did counsel for the mother, that the Convention proceedings were not parenting proceedings under Pt VII of the Family Law Act but it was the adoption of the Convention under the regulations of the Family Law Act.

6. The Secretary has at all times said to the court (and it is an agreed fact) that he will comply with any order made by this Court exercising its powers under s111B of the Family Law Act.

7. I determine that there is no direct or indirect inconsistency between the laws and even if I chose to order the return of the children to New Zealand it would not, in the circumstances of this case, be inconsistent with the operation of the State Welfare laws.  The exercise of the powers in relation to the convention is not inconsistent with the State’s exercise of its powers under the Children, Young Persons and Their Families Act.  As such I reject the submission on behalf of the mother in that respect

8. The argument on behalf of the mother seems to relate to the scope of the power of the Family Court not as to whether the Family Court has jurisdiction to adjudicate in respect of the conventions. 

9. In respect of this aspect of the claim the mother sought that the proceedings be summarily dismissed.  I reject that part of the application. 

10. In the circumstances of the determinations I have made in this respect it is not necessary for notices to be sent to the Federal and State Attorneys General.

STAY OF PROCEEDINGS

1. The mother seeks a stay of proceedings whilst the Secretary remains as the applicant. In relation to this question there was an issue as to what information was available in general from the Secretary, as distinct from the disclosure of informants which I have dealt with during the hearing and by giving consent to the Secretary to make a disclosure under s16 of the Children, Young Persons and Their Families Act.

1. Counsel for the mother’s submission is on the basis that the Secretary is the applicant in these proceedings seeking an order for the return of the children to New Zealand and at the same time the Secretary is exercising power under the Children, Young Persons and Their Families Act in the Magistrates Court (Children’s Division) where orders have been made that the Secretary have custody of the children.

2. Counsel for the mother submits that the Secretary is “hopelessly compromised and its continued involvement, as a matter of perception, is inconsistent with the proper administration of justice”.[2]  He says for the Secretary to continue “as the Applicant would create a perception of abuse of the administrative Process”.[3]  The basis upon which the mother claims there is this conflict of interest is that the Secretary is administering the proceeding under the State Child Welfare proceedings and is at the same time prosecuting these Convention proceedings. 

   [2] Page 7 of the mother’s Outline of Case.

   [3] Ibid.

3. The mother complains that she “does not know what stage the assessment order is at or what the investigation would unearth”.[4]

   [4] Loc cit.

4. The mother is a party to the proceedings in the Magistrates Court (Children’s Division) and knows or is entitled to know the state of those proceedings and the assessment order.   

5. Any material unearthed by the investigations will need to be placed before the Magistrates Court (Children’s Division) and the mother will be made aware of them.  The only limitation to this is the provision of any information about any notifiers.  The mother is entitled to require production of the Department’s investigation files.

6. I am not satisfied there is any conflict arising out of those issues.

7. The mother claims that the Secretary may have concerns that the children are in “at risk” circumstances if they were returned to the father. There is no indication or evidence that such a factful situation exists.  This argument by its nature is based on the hypothetical.

8. Furthermore the application was made to the Magistrates Court (Children’s Division) and orders were made because of concerns about the mother’s behaviour to the children and not the father’s.  This is not to be taken that I have accepted or made a finding that the mother’s behaviour was inappropriate but it was clear that the father had returned to New Zealand on 12 August 2009 and it is the events, which are alleged to have occurred between the mother and the children, subsequent to those dates which gave rise to the proceedings under the State Legislation.

9. There is no evidence before me that the New Zealand welfare authorities, if necessary, are unable to deal with these issues if the children are returned to New Zealand.

10. Counsel for the mother says there could be a perception, presumably by the mother, that the Secretary would “abrogate”[5] his obligation to protect the children in favour of the proceedings under the Convention.

    [5] Page 8 of the mother’s Outline of Case.

11. In that regard counsel for the Secretary submitted that the Secretary has two separate sources of power which are not inconsistent and are not in conflict.  I agree with that analysis.  There is no conflict arising in that respect.

12. The Secretary has put his concerns about the welfare of the children to the Magistrates Court (Children’s Division) and has disclosed all of the relevant material in that regard to this Court.  The Secretary sought and obtained permission to provide details of the disclosure so that all of that material could be before this Court.  I am not satisfied that the Secretary’s roles, in respect of the two statutory duties which he is undertaking, are inconsistent and/or in conflict.

13. Counsel for the mother sought to rely on the principles set out in Rothschild v Mullins & Anor [2002] TASSC 100 in that there was an analogy in this case with regard to legal professional privilege surrounding conflict of interest of solicitors. The analogy is not sound. The protection of legal professional privilege is different to the circumstances in this case.

14. The Secretary had access to materials which, apart from the name of any notifier, was available to the mother.  The files of the Secretary’s offices were available to the mother.

15. Further counsel for the mother complains that the use of Ms P’s affidavit (an officer employed by the Secretary in its welfare activities) contravenes s16 of the Children, Young Persons and Their Families Act. The issue was raised in respect of s16 of the Children, Young Persons and Their Families Act and was dealt with earlier and it does not create a conflict in the form claimed by the mother. 

16. Section 16(7) of the Children, Young Persons and Their Families Act provides that the Freedom of Information Act 1991 (Tasmania) does not apply to the identity of a notifier.

17. Counsel for the Secretary said all of the other information was available and would have been available to any organisation pursuing an application under the Child Abduction Regulations.  To that end he took me to s53B(1)(a) of the Children, Young Persons and Their Families Act which provides that the Secretary may provide an information sharing entity with information relating to the safety, welfare or wellbeing of relevant persons.  As a consequence the Secretary says that he can share information, which includes himself and other officers of the Department.  He says that because the Secretary is entitled to share information the right hand can know what the left hand is doing.   So therefore when the Secretary is acting as a State Central Authority he is entitled to that information.   

18. There is no “conflict of interest”.  The Secretary is using his powers in different ways and using information which his available to him. 

19. The ability of the mother to present her case is not in any way compromised by the Secretary’s involvement in both sets of proceedings.  The mother needs to show either that the Secretary was seriously “in conflict” in terms of exercising both the welfare power and the Convention power.  There is no evidence of such a conflict.  The Secretary’s files in the child protection proceedings are open and available to the mother (with the exception of the notifiers and I have given reasons in that respect). 

20. The factual basis upon which the Secretary exercises the welfare concerns relate to the behaviour of the mother after the father had returned to New Zealand. 

21. There is no actual or apparent conflict of interest.

22. Counsel for the mother’s analogy with the legal profession relates to the disclosure of secrets between the legal firms.  That is not an issue in this case and the Secretary is entitled to inform himself in his various guises and has not contravened any perceived legal professional privilege by exercising his statutory powers in relation to both of the proceedings.

23. The only detriment to the mother that can arise out of the Secretary’s knowledge of the proceedings is that the Secretary is put in a position where he is able to display an inconsistency in respect of the evidence of Ms N where in her affidavit, filed 26 October 2009, she said that she had not made a notification to the Child Welfare Protection Agency whereas on the evidence available to me it is open for me to find that she did and this may compromise or impeach that part of her evidence.  The effect of that evidence may have some impact on the mother’s case but it does not amount to such a conflict as would base a stay of the proceedings.  Accordingly the mother’s application for a stay is dismissed.

THE EVIDENCE

1. The Secretary relied upon the application initiating proceedings which was filed in the Hobart Registry of this Court on 14 October 2009.  This application contained  the following:-

   a.Authorisation empowering the Central Authority to act on behalf of the applicant.

   b.Affidavit as to the applicable law.

   c.Affidavit of the father sworn 28 August 2009 (subject to some exceptions which I will deal with later).

   d.Passport photographs of the three children.

   e.Copies of the three children’s birth certificates.

   f.A supplementary affidavit to the affidavit of the father attached to the original application, that second affidavit being dated 30 September 2009.

   g.Copy application by Tony Poole under provisions of the Children, Young Persons and Their Families Act filed 9 October 2009 attaching an affidavit of Ms P filed 9 October 2009. Paragraphs 5, 10, 13 and 16 of that affidavit of Ms P are the subject of comment which I will make later in these reasons.

2. Counsel for the Secretary did not read into evidence the following parts of that affidavit:-

   -Dot points 3, 4 and 5 of paragraph 6, paragraph 8 and the third and forth sentence at paragraph 17.

   -The Secretary relied on three further affidavits being the applicant father, Ms K Park and Ms A Park (subject to comments I am going to make shortly) each sworn 29 October 2009.

3. The mother relied upon an amended answer filed by her on 5 November 2009 and two affidavits by her one filed 26 October 2009 the other filed 29 October 2009.  The mother also relied upon an affidavit of Ms N filed 26 October 2009 and a further affidavit of Ms N filed 29 October 2009.

4. The final material which the mother relied upon was an affidavit of her solicitor filed 6 November 2009 in which he set out the fact that the children are in the custody of the Secretary pursuant to the orders of 12 October 2009.

5. Having regard to the evidence and for the following reasons, I am satisfied of the following facts:-

   a)Both parents were born in New Zealand and were residing in New Zealand when the children were born and continued to reside in New Zealand until they flew to Tasmania on 23 June 2009.

   b)Both parents and the children are New Zealand citizens.

   c)I accept that the decision made to move to New Zealand was made as a “rushed” decision and was instigated solely by the father’s employment offer from the MR Partnership with the intention of earning sufficient money to reduce the amount of debt and then to return home to New Zealand in one or two years.

   d)The father did not execute a contract with his employers until after his arrival in Tasmania.  The contract was signed on 6 July 2009.  I find that the parties moved to Tasmania with an underlying and continuing mutual intention that the family would return to New Zealand at the expiration of this time and that job. 

   e)I find that this offer of employment was just one of four opportunities considered by the father in the months prior to their departure from New Zealand and was the only offer outside of New Zealand.  Further, that the offer outside New Zealand had the better remuneration package.

   f)I am satisfied that the parties’ move to Tasmania was on the basis of that employment and subject to a continuation of that employment.   

6. The mother disputes that the travel to Tasmania was for the work and says it was to “start a new life”.  In respect of this evidence, on balance, I prefer that of the father.  I am aware that the mother’s evidence was supported by the evidence of Ms N however I have concerns about the reliability of her evidence. 

7. In coming to this conclusion I find the parties left some furniture stored in New Zealand and this was indicative of their intention to return to New Zealand within the time frames asserted by the father. I accept his evidence that the parties sold their household whiteware items and larger items of furniture to pay for their air tickets.  Their personal property was stored at the father’s parent’s home in New Zealand pending their return

8. Once the family arrived in Tasmania they stayed on a cottage on the farm property.  I am satisfied that they endeavoured to integrate into the community and that they were given some help with furniture.

9. I accept the evidence of the father that the decision to move to Tasmania was “very impulsive”[6].  He said the motives of he and the mother were to get on top of their debt and return home.

   [6] At paragraph 7.

10. By affidavit filed 26 October 2009 the mother responded to the first two affidavits of the father.  There is no issue that the parties had separated in about October 2008 in New Zealand and reconciled in New Zealand in 2009.  The father says April 2009 and the mother says February 2009. 

11. The mother’s evidence is that she and the father had been looking for work in New Zealand between February and May 2009 and that they talked on a number of occasions about moving to Tasmania to start a new life.  She said that both she and the father used the words “…..to make a new start and a clean break from all our problems”.[7]  She went on to say that the arrangements to work in Tasmania were for one year with the opportunity for extension to another year, but there was arrangement that it would be ongoing after that time.

    [7] Paragraph 1.6 of the mother’s affidavit filed the 26 October 2009.

12. No evidence was adduced from the father’s employers by the mother in support of her assertion that the employment would be ongoing after the contract had expired.

13. The mother does not disagree that personal property was left in New Zealand but says that there was discussion between her and the father to have those goods shipped over when they had the money to do so.  On balance I prefer the evidence of the father.

14. I have some concerns about the reliability of the mother’s evidence.  In her affidavit filed 29 October 2009 at paragraph 1.3(a) the mother denied that she had smacked T or B across the side of the head with a wooden spoon.  However, annexed to the affidavit of Ms N filed 29 October 2009 there is a statement by her son, RN, who says:-[8]

    [the mother] took [B] into the kitchen and got out the wooden spoon.  She hit him twice on the head and a couple of times on the hands after she made him hold out his hands.

    [8] Annexure B.

15. Some of the mother’s case relies upon the evidence of Ms N. She deposed in her affidavit filed 29 October 2009 the following:-[9]

    I agree there were bruises on the childrens’ faces and that they were often very aggressive towards each other.  I believe the bruises were not inconsistent with their rough and tumble play.

    She went on to say:-

    I deny saying to [Ms P] that I have seen [the mother] hit [B] and [T] with a wooden spoon as suggested.  I also do not recall [RN] saying the words mentioned in the second sentence of that paragraph.  [RN] was present with me when we made a statement to [Ms P].       

    [9] At paragraph 2.2.

16. In her statutory declaration Ms N says:-[10]

    I‘ve [sic] heard [the mother] yell at the kids, but haven’t seen her hit them … I was home when [RN] told me about [the mother] hitting [B].  [RN] bought him out to me and [B] was upset.  [B] said to me he’d [sic] fell over.

    [10] Annexure A of the affidavit of Ms N filed the 29 October 2009.

17. There was an issue as to whether Annexure A to the affidavit of Ms A Park (“the paternal aunt”) filed 30 October 2009 ought to be admitted as evidence. The father sought to rely on Annexure A, the electronic Facebook communications between Ms N and the children’s paternal aunt.  Objection was taken, by counsel for the mother, to the admission of the material. In that regard the evidence went beyond mere credit, it went to the question of the alleged assaults on the children after the father’s return to New Zealand and the question of whether Ms N was concerned about the well-being of the children to the extent that she reported those concerns to the Child Protection Authorities but has subsequently denied making such reports. As such I admit that evidence.  The probative value of this material is significant in the context of these proceedings.

18. In the communication between Ms N and the paternal aunt Ms N says the following:-[11]

    I am not sure why he got hit but it wasn’t good the way she laid into him.  Maybe I have done the wrong thing but what else could I do [in reporting the mother to the State Welfare Authorities].

    [11] Annexure A of the affidavit of Ms A Park filed the 30 October 2009.

19. Later Ms N denies that the child was hit and that she reported the matter to State Welfare authorities. When the matter was first before the Court on 6 November 2009 counsel for the mother sought leave to file further material by Ms N and possibly the mother in relation to these issues.  No such evidence was prepared or filed between 6 November and 13 November 2009.  Having regard to that circumstance I am satisfied that the probative value of that evidence (bearing in mind that none of the parties were cross-examined) is of greater weight than the prejudicial value.

20. If Ms N did not say the words attributed to her in Annexure “A” or the annexure was incomplete it was open for her to file material to that end.

21. I am satisfied that Ms N notified Child Protection Authorities and said the words:-[12]

    I am not sure why he got hit but it wasn’t good the way she laid into him, maybe I have done the wrong thing but what else could I do.

    [12] Ibid.

22. She now denies doing so. I believe that Ms N is now supporting the mother and is at some levels ignoring or hiding her observations of abuse on the children.  The Facebook conversation she had with the paternal aunt was on 8 October 2009.  On 15 October 2009 (some seven days later) she concedes that she was told by her son, RN, that the mother hit B with a wooden spoon twice on the head and a couple of times on the hands.  RN’s statutory declaration shows that Ms N was informed by her son about what happened.  Ms N, when asked about the incident, concedes that her son RN told her about the mother hitting B and that RN brought B, who was upset, to her but then said B told him that he fell over.  She says in paragraph 2.2 of her affidavit filed 29 October 2009 that:-

    I believe that the bruises were not inconsistent with their rough and tumble play.

23. Ms N knew that this child had been hit but was endeavouring to lay the blame for any bruising and marks to the child’s rough and tumble play.  In her affidavit filed 26 October 2009 Ms N set out in paragraph 2(a) and (b) the alleged descriptions by the father and mother in relation to remaining in Tasmania.  As I have said earlier, the context of this, particularly in relation to paragraph 3 and the other concerns I have expressed, I am not satisfied that this evidence is reliable.

24. There is no issue that after the father’s employment was terminated, on or about 22 July 2009 (about four weeks or so after he commenced employment) both the father and mother were upset and concerned.  I accept and prefer the evidence of the father that they attended at the S Community House on about 30 July 2009 and that on the way home from that meeting the father and mother agreed to return to New Zealand with the children.  I prefer the father’s evidence in that regard. 

25. Almost immediately after that conversation the father contacted his mother in New Zealand requesting financial help for the return airfares.  His sister was also called upon to see if she could assist with the airfares.

26. Under Australian law (s61C of the Family Law Act) and New Zealand Law, (s17(1) of the Care of Children Act 2004 (New Zealand) provides that the parents are joint guardian of the children) the father had rights of custody, which I have discussed elsewhere in these reasons.

27. As at the 30 July 2009 and thereafter the father was entitled to remove the children from Australia to New Zealand and the mother consented to that course.  Furthermore that was underpinned by the arrangements the parents had put into place, that is, that the family would remain in Tasmania for the purpose of his employment. I am satisfied that at no point has there been a joint settled intention for the parties to leave New Zealand permanently and I am satisfied that as at 30 July 2009 the parties had a settled intention to return the family to New Zealand.

28. On 3 August 2009 the parties separated and the mother prevented the father from having other than supervised time with the children.  The father saw the children on 4 August 2009 but was only able to see the children under the direct observation of Ms N.  The mother would not speak to the father on that day.  The following day the father endeavoured to speak to the mother again but was warned off with the threat of police involvement.

1. On 9 August 2009 the mother rang the father and had a brief discussion about possessions.  The father subsequently spoke to Ms N and he was allowed to see the children under supervision for about half an hour on that day.

2. On 11 August 2009 I accept the evidence of the father that he said to the mother:-

   When I get the children, what will you do then?  Will you come back to New Zealand to visit them?

3. The mother replied:-

   There would be nothing for her [me] to come back to New Zealand for and that she [I] would stay in Australia to work.

4. The father then said:

   How would she [you] maintain contact if that were the case as I would not be able to finance trips to Australia.

5. I accept this evidence as being indicative that the father made it clear that he and the children would be returning to New Zealand and that the mother was preventing that agreement from being put into place.  The father had contacted the New Zealand High Commission on 4 August 2009 and had been advised that the appropriate course was to return to New Zealand and have the Central Authority advance matters.  He was criticised by counsel for the mother saying that it was “an abuse of process”.  I do not adopt or accept that submission.

6. The father and mother had agreed for the children to return to New Zealand and the father believed that they were and continued to be New Zealanders (from his perspective).  I am satisfied that the mother knew the father wanted to return to New Zealand with the children and the mother had taken effective steps by way of separation and supervised time to prevent that occurring.

7. The father flew back to New Zealand on 12 August 2009.  On 15 and 16 August 2009 the father had conversations with Ms N and he made it clear to her that he wanted to collect the children and she said she would assist him in that respect.  The father had a telephone conversation with the mother on 18 August 2009.

8. Over September 2009 there were serious concerns by the Department in respect of the mother’s care of the children (the mother denied the allegations made against her) and on 7 October 2009 two of the children were taken to see a doctor and orders were made in the Magistrates Court (Children’s Division) on 9 October 2009.

HABITUAL RESIDENCE

1. The onus is on the father to establish that the habitual place of residence of the children is New Zealand, and bearing in mind the age and maturity of the three children I accept the submission of counsel for the Secretary that the place of habitual residence of the children will be the same as that of the parents[13].  In Punter v Secretary of Justice [2007] 1 NZLR 40 at 61 and 62 the majority said the court is to look at all the relevant factors including:-

   ·       settled purpose

   ·       the actual and intended length of stay in the State.

   ·       the purpose of the stay.

   ·the strength of ties to the State and to any other State (both past and currently)

   ·the degree of assimilation into the state including living and schooling arrangements; and

   ·cultural and social economic integration.[14]

   [13]L K Director General, Department Community Services (2009) 237 CLR 582; [2009] HCA 9 at 27.

   [14] Cited with approval in L K Director General, Department Community Services (2009) 237 CLR 582; [2009] HCA 9.

2. In terms of the settled purpose I find the parties had a settled purpose to move to and remain in Australian for one year with the possibility of two years but with the clear intent to return to New Zealand.  In addition the parties’ time in Australia was based upon the father’s continuing employment, once his job was lost the parties agreed to return to New Zealand in accordance with their underlying purpose.

3. The actual time the father was in Tasmania was from 23 June to 12 August 2009.  The mother was in Tasmania from 23 June 2009 to date. 

4. The mother says their habitual residence in New Zealand had ceased because this was the start of a “new life”.  I do not accept her evidence. 

5. Counsel for the mother said that the parties had joined a church group, had formed friendships with people such as Ms N, which was indicative of them abandoning their habitual residence in New Zealand and forming habitual residence in Australia.  I accept that the mother did these things but in the context of the short term arrangements to live in Australia. The father and mother had limited social and economic integration in Tasmania and this was only through the employment which the father obtained and which employment was terminated.  Their contacts with the community were for a very short period of time. 

6. The mother also relies on the evidence of Ms N that the father had said on numerous occasions words to the effect that the father and mother were intending to remain in Tasmania for an indefinite period of time and had no intention of returning to New Zealand.  She said this continued even after the father lost his job.

7. I have concerns about the reliability of the evidence of Ms N for reasons set out elsewhere and I treat her evidence with some caution. 

8. I am satisfied that in all of the circumstances the parents, and consequentially the children, were habitually resident in New Zealand at all relevant times. 

THE CHILDREN’S RETENTION IN AUSTRALIA

1. Counsel for the mother argued the father had no enforceable rights of custody to the children immediately prior to their retention in Tasmania.  Under New Zealand law a guardian of a child has “every duty, power, right and responsibility that is vested in the guardian of a child by any enactment”[15] and including “having the role of providing day-to-day care for the child, contributing to the child’s intellectual, emotional, physical, social, cultural, and other personal development; and determining for or with the child, or helping the child to determine, questions about important matters affecting the child”.[16]

   [15] Paragraph 15(b) of the Care of Children Act 2004 (New Zealand).

   [16] Ibid at paragraph 16(1).

2. The father had rights of custody in New Zealand and also had rights of custody under Australian law (s61(C) of the Family Law Act).  There is not an issue that the parents were at all relevant times living in a de facto relationship and that the children are children of the parents.  The parents are joint guardian to the children under s17(1) of the Care of Children Act 2004 (New Zealand).

3. Section 16 of the Care of Children Act 2004 (New Zealand) provides that the father has the right to provide day to day care and as such has rights of custody to the children under New Zealand law.

4. The counsel for the mother says that as at the date of the application, 14 October 2009 and subsequent time, there had been an order made in Tasmania under the state welfare laws and as a consequence the father had no rights of custody.  The rights of custody are determined as at the date of retention (vis 3 August 2009) or at worst 12 August 2009. 

5. In DP v Commonwealth Central Authority[17] the High Court said:-[18]

   Nothing in the definition of “removal” and “retention” or of “right of custody” requires that, before removal or retention, there shall have been any judicial decision about rights of custody and nothing in those definitions requires that at some later time there be an application to a court to determine who shall have future rights of custody in relation to the child.  All that the definitions require is that by the law of the place of habitual residence immediately before removal or retention, the child’s removal to Australia or the child’s retention in Australia is in breach of the rights of custody of some person, institution or body.  Often enough, that will be so that where, by operation of the law of the place of habitual residence, both parents have joint rights of custody of their union. Sometimes, before any application to the courts in Australia, the parent who has not removed or retained the child will have approached the courts of the place of habitual residence for interim or permanent orders about custody of the child but that will not always be so.

   [17] (2001) 206 CLR 401; [2001] HCA 39.

   [18]Ibid at 412.

6. The Secretary submits that “while the wrongful retention of the children in Australia crystallised on or about the 15 or 16 August 2009,  the circumstances that gave rise to that retention commenced when the mother unilaterally removed the children from the family’s place of residence in Tasmania on 3 August 2009”.[19]  I am therefore satisfied that the mother was not entitled to retain the children in Australia in breach of the joint intention that the parties had expressed on or about 30 or 31 July 2009 that they would return to New Zealand.  The retention by the mother was at a time prior to any orders being made by a Court exercising powers under the Tasmanian State Welfare laws and therefore the argument by the mother’s counsel in that respect fails.

   [19] Paragraph 38 of the Applicant’s Outline of Submissions filed the 5 November 2009.

7. Further counsel for the mother also submits the father spending time with the children on the 4 and 12 August 2009 was indicative of him exercising his rights of parenting.  The father says that after 3 August 2009 he made endeavours to see the children and saw them on 4 August 2009 but under the supervision of Ms N and for a limited time.  As a consequence the father was prevented from exercising those rights of removing the children to New Zealand as the parties had agreed.  Further the father says that he expressed to the mother that he wanted the children to return to New Zealand.

8. On 5 August 2009 the father requested that the mother speak to him but says he was warned off with the threat of police action.  The father’s evidence was that he spoke to the mother on 9 August 2009 and subsequently saw the children for about half an hour.  On 11 august 2009 he said the following:- [20]

   [the mother] responded with words to the effect that if I wanted the children I would have to bring it on.  I took this to mean that I would need to go to court.  I said to [the mother] words to the effect “When I get the children, what will you do then.  Will you come back to New Zealand to visit them”  [the mother] responded with words to the effect “there would be nothing for her to come back to New Zealand for and she would stay in Australia and work”.  I then said to her words to the effect “how would she maintain contact if that were the case as I would not be able to finance trips to Australia”.

   [20] Paragraph 24 of the father’s affidavit filed the 14 October 2009.

9. He said the mother did not respond apart from calling him names.  The father then said he went back to New Zealand.  The mother knew from 30 July 2009 that the father intended to repatriate the family to New Zealand and took steps to prevent that from happening, including separating and preventing the father from having unsupervised time with the children.

10. In relation to that conversation the mother says that there was never any discussion about him taking the children to New Zealand.  The father says that he contacted police in S to establish what his rights were and on 4 August 2009 he contacted the New Zealand High Commission in Canberra.  At that time he says he was directed to the Central Authority upon his return to New Zealand.

11. I am satisfied that the father was endeavouring to exercise his rights of custody for the return of the children to New Zealand on or just before he returned to New Zealand and on balance I accept his evidence that he returned to New Zealand so that he could bring about the children’s return.

12. He was, as at 3 August 2009 entitled to exercise his rights of custody and was exercising his rights of custody in terms of the arrangements to return the children to New Zealand and in terms of his day to day interaction with the children and making decisions about their care and welfare.

13. I am satisfied that at the time of the retention, which was in August 2009, the father was exercising his rights of custody in terms of returning the children to New Zealand and in terms of his day to day interaction with them and would have exercised those rights had the mother not retained the children in Australia and prevented him from effectively seeing them or putting into effect the arrangements that the parties had made.

14. I am satisfied that the application was filed within one year of the date in which the children were first retained in Australia, vis August 2009.

15. In respect of reg 16(3)(a)(ii) of the Child Abduction Regulations the mother asserts that the father acquiesced to the children being retained in Australia. I reject that submission. From 3 August 2009 onwards the father made it clear to the mother that he expected the children to be in New Zealand and return to New Zealand. The father made enquiries of the New Zealand High Commissioner on 4 August 2009 and had a conversation with the mother on 11 August 2009. There is no evidence of any acquiescence to the children remaining in Australia nor on the evidence of the father, which I accept, has he consented to the children remaining in Tasmania.

16. Counsel for the mother made no submission in relation to reg 16(3)(b),( c) and (d) of the Child Abduction Regulations.

17. Counsel for the mother submitted the father sought to exploit the “perfunctory” processes of the Convention to avoid the fuller enquiry under the provisions under Pt VII of the Family Law Act.  In support of this proposition he relied upon MW v Director-General of Department of Community Service (2008) 244 ALR 205 at paragraph 52; [2008] HCA 12; where the court contrasted the jurisdiction of s111B to that under Pt VII of the Family Law Act.

18. Further counsel for the mother submitted that the father could and should have invoked the provisions of Pt VII of the Family Law Act.  He argued this would have been the case even if he sought to stay the proceedings on the basis New Zealand was the appropriate forum and relied upon B v B (re Jurisdiction (2003) FLC 93-136 in support of his submission.

19. I do not accept these submissions bearing in mind my findings that New Zealand was the parties and the children’s habitual place of residence.  These are not proceedings under Pt VII of the Family Law Act.

20. The purpose of Convention proceedings is to identify in which country’s courts any parenting proceedings should be determined. In Australia the courts will normally not deal with parenting proceedings once an application has been made under the Child Abduction Regulations. A return order does not determine issues about with whom the child should live or spend time: it simply provides for the child to be returned to the relevant convention country.[21] When an application is made under the Child Abduction Regulations, any existing Australian parenting proceedings will normally be adjourned or set aside, and fresh proceedings not allowed.[22]

    [21] See reg 14(1)(a), 18(1)(c) of the Child Abduction Regulations.

    [22]See reg 19 of the Child Abduction Regulations.

21. Proceedings under the Child Abduction Regulations should normally be heard before proceedings for a parenting order under Pt VII, not at the same time Director-General, Department of Families, Youth and Community Care v Moore (1999) FLC 92-841 at p 85,833; (1999) 24 Fam LR 475; Director-General, Department of Community Services Central Authority v RMS (1999) 27 Fam LR 259; (2000) FLC 93-026.

22. I am satisfied that the children are under 16, and they were, by reason of their parents’ habitual residence, habitually resident in New Zealand immediately before their retention in Australia.  Further that the retention was in breach of the father’s rights of custody and that the father was actually exercising those rights and would have exercised the rights to return the children to New Zealand but for the retention by the mother.

23. The mother opposed the return relying upon an assertion that the father was not actually exercising rights of custody. For the reasons set out above, it is clear he was exercising such rights and was later prevented from doing so.  There is no consent or acquiescence to the retention of the children in Australia by the father.

24. Accordingly, I make orders for the return of the children to New Zealand and other consequential orders.  

I certify that the preceding one hundred and forty two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.

Associate:     

Date:              9 December 2009