State Central Authority and Te Mata

[2016] FamCA 85

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & TE MATA [2016] FamCA 85

FAMILY LAW – Final Hague return application – wrongful removal conceded – exceptions to return – not satisfied of consent – satisfied that the mother acquiesced to the retention of children in Australia – discretion not to return exercised – mediation and preparing for outcomes

Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Wenceslas & The Director-General, Department of Community Services [2007] FamCA 398

APPLICANT: State Central Authority

RESPONDENT: Mr Te Mata

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11779 of 2015

DATE DELIVERED: 9 February 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 9 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Porritt

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

COUNSEL FOR THE RESPONDENT: Mr F.K. Te Mata in person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M. Da Costa

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED:

1.That the application of the State Central Authority filed on 16 December 2015 for the return of the children B born … 2012 and C born … 2013 (“the children”) be and is hereby dismissed.

IT IS DIRECTED:

2.That the exhibits “ICL 1” and “ICL 2” remain on the Court file and the protection order be marked Exhibit “ICL 3” and remain on the Court file.

IT IS FURTHER ORDERED THAT:

3.I reserve liberty to the independent children’s lawyer to contact my Associate - email … - prior to 10.00 am on Friday 12 February 2016 (Melbourne time) to ask that this matter be listed so that an oral application can be made by the mother, the father and the independent children’s for orders to which they all agree.

4.Paragraphs 7 to 10 inclusive of the orders made on 16 December 2015 be and are hereby discharged.

5.IT IS REQUESTED that the Australia Federal Police remove the names of the children B born … 2012 and C born … 2013 from the Airport Watch List at all points of international arrivals and departures in Australia AND IT IS DIRECTED that a copy of this Order be sent electronically to the Australia Federal Police by this Registry of the Court.

6.The respondent father, Mr Te Mata, be and is hereby at liberty to collect from the Registry Manager of this Registry of the Court any passports of the children B born … 2012 and C born … 2013 currently held for safekeeping by this Registry of the Court.

7.That the order for the appointment of the independent children’s lawyer be and is hereby discharged one week from the date of this Order.

8.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11779 of 2015

State Central Authority

Applicant

And

Mr Te Mata

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me as the defended hearing of the application of the State Central Authority for the return of two children:  B and C, to New Zealand pursuant to regulation 14 of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”).

2. The application is made at the behest of the requesting parent, Ms Butler, who is the mother of the children and a resident of New Zealand. She alleges that the respondent father wrongfully removed the children to Australia within the meaning of regulation 16 of the Regulations; which is conceded. The children are under the age of 16, that they were habitually resident in New Zealand prior to their removal to Australia; that the mother was a person who had rights of custody under the laws of New Zealand; and the children’s removal or retention in Australia has been in breach of those rights of custody. It is also conceded that, at the time of the alleged removal or retention, the mother was actually exercising the rights of custody, or would have exercised those rights had it not been for the removal or the retention.

3. The application of the State Central Authority is filed on 16 December 2015.  It sought a raft of interim orders to protect the safety and to secure the children pending the disposition of these proceedings.  It also sought a return of the children to New Zealand.  It detailed the wrongful retention in terms which are imprecise, save that it details that the children were removed from New Zealand on the 20 January 2015 without the consent of the mother.  It is this that I take to be the alleged wrongful removal of the children.

4. Being satisfied that the removal was wrongful, there are certain exceptions to a mandatory return of the children under the Regulations and it is only one of those with which this hearing is concerned. Regulation 16(3)(a)(ii) provides that a court may refuse to make an order for the return of a child to the other convention country, in this case New Zealand, if a person opposing return establishes that the person, in this case, the mother “had consented or subsequently acquiesced in the children being removed to or retained in Australia”. The respondent father bears the onus of proving acquiescence.

5. Facts must be proved to a balance of probabilities. A statement of fact is a finding of fact.

6. The evidence submitted includes the material set out and attached to the application initiating proceedings.  There is further affidavit material of the mother annexed to an affidavit of Ms D, solicitor, affirmed on 25 January 2016, that constitutes affidavitory evidence of the mother sworn in City E on 22 January 2016.  Pursuant to Regulation 29(2) the mother’s evidence, filed thus, is adequate as evidence of facts stated.  There is the material in response relied upon by the father being his affidavit sworn on 7 January 2016. Both sets of documents have a number of exhibits.  A number of those exhibits are text messages or electronic communications.

7. Pursuant to an order made on 16 December 2016 Ms Caroline Smith, Solicitor, was appointed as the independent children’s lawyer for the children within the meaning of Division 10 of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Her role is to form an independent view, based on available evidence, of what is in the best interests of the children and then act in these proceedings in what she believes those best interests to be.[1] Ms Smith is not a legal representative retained by the children and she is not bound by any instructions from them.[2] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for each of the children the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[4]

   [1] Family Law Act 1975 (Cth) s 68LA(2).

   [2] Family Law Act 1975 (Cth) s 68LA(4).

   [3] Family Law Act 1975 (Cth) s 68LA(5)(d).

   [4] Family Law Act 1975 (Cth) s 68LA(5)(e).

8. In return cases under the Convention,[5] the independent children’s lawyer assumes a more focused role.  That is to ensure that the interests of the children are represented before the Court in circumstances where they may differ from the interests of a respondent to the application or an applicant to the application. 

   [5] Convention on the Civil Aspects of International Child Abduction; concluded on 25 October1986.

9. Ms Smith, in this case, was directed at an early stage to ensure that whatever appropriate communication could occur between the children and the left-behind parent in New Zealand was in fact occurring.  The other aspect of her involvement as an independent children’s lawyer was to facilitate a mediation based on a specialised Hague model, through Victoria Legal Aid, which she did.

10. The parties participated in three sessions of mediation, as is routine where the mediation seems to be making progress.  In this case, no final agreement was mediated, but the children, in my view, are fortunate that their parents were able to discuss and prepare for the possible outcomes of these proceedings.  Counsel for the independent children’s lawyer has tendered a minute of proposed orders, which the parents agreed ought be made in the event that the application failed and a return of the children was not ordered, and a minute of order which it is agreed between the parents ought be made in the event that the application succeeds and I order B and C to return to New Zealand.

11. Each party required the other witness for cross examination, and that occurred.  The father was cross examined in Court by counsel for the State Central Authority and by the independent children’s lawyer. The independent children’s lawyer however, refrained from asking leading questions in view of the fact that she had not then reached a concluded view about the recommendation which the independent children’s lawyer was going to make on the disposition of the proceedings.

12. It was intended that the mother would be cross examined by the father and the independent children’s lawyer with the benefit of audiovisual technology between Australia and New Zealand; that did not occur because of a technological glitch.  I note this is the third occasion in seven days that the Court’s technology designed to obtain evidence overseas in a cost-effective way has failed.  As a fall-back position, the Court placed a call to the mother, who was then permitted to listen to the evidence and the cross examination of him and then give some brief viva voce evidence herself and be cross examined.  I think that the time on the telephone would have approximated two hours.  It’s an expensive way to approach something which the Court had intended would be at an extremely modest cost and allow me to observe the mother. 

Background and Relevant History

1. Both parents are citizens of New Zealand.  Neither parent is a citizen of Australia.  B was born in 2012 and C was born in 2013.  In June 2014, the father assumed sole care of the children from the mother, when B was two and a half years old and C was 14 months old.  The father deposes, and the mother does not disagree, that the children had previously been in the care of her sister, Ms F, since January 2014 and April 2014 respectively. 

2. At the time of the father assuming care of the children, he was living in G Town, New Zealand and the mother was living in City E, New Zealand.  There was a considerable distance between these locations, of approximately 1,000 kilometres.  Either both parents were unemployed or, if either was employed, they were employed at a modest income and had little money. 

3. When the father assumed sole care of the children he did not work outside the home. 

4. It is common ground that in 2014, after the children were in the care of the father, the mother and father discussed the possibility of the father and the children moving to Australia in the care of the father and, on occasion, discussed the possibility of the mother joining them in Australia.  The mother had visited Australia in 2013 to look for employment. 

5. The father sets out various text messages from the mother, including on 17 September 2014 the mother having written to him in the following terms (relating to herself):

   Staying focused, not drinking or anything … working hard and being kind to myself, thank you for taking the boys, I needed the time out and I’m feeling stronger every day … I can get a transfer with my employer across the ditch, so maybe I’ll follow you guys after I’ve worked a year … Bless you, [Mr Te Mata] [the father].  I’m glad they have their dad to love them, too.

6. The father extracts a further text message from 17 November 2014 which follows, on his evidence, after there had been considerable conversation about his plans to relocate to Australia and to take the children with him.  The text reads:

   [Mother]: When do you guys plan to head over to Aussie?

   [Father]: Mid Jan or thereabouts, why wots (sic) up?

   [Mother]: I want to spend some time with them before they go … I never wanted them to be so far away from me.  It breaks my heart that I can’t be with them every day!!  But getting you to come to [City E] for them wasn’t going to happen and I couldn’t do it all by myself, so I had to give them up.  I miss them terribly!!

7. When the mother was asked in cross examination how the above text message ought be construed, she said that it was not within her contemplation that she was consenting to the children leaving New Zealand.  She said that she was considering that they might at some stage in the future go.

8. The father and also the mother put before the Court a text message interchange on 12 December 2014.  It appears most comprehensively in the mother’s affidavit of 22 January 2016 to which I have earlier referred.  It starts at 12.30 pm with the mother saying:

   [Mother]: I can’t let you take them … I never wanted them to be away from me in the beginning.. I want them to come home to their mum..I miss them terribly.

   [Father]: Yep ok alguds, we at least hav to talk about hw this wud happen. If u want them thats alguds but im still going so we hav to sort out hw to get them to u. If u r sure u r n a gud place to take them back i hav no issues with that i jus need to knw frm u that they wil b taken care of, so if they wil b gud with u, alguds

   [Mother]: When do you fly out?

   [Father]: Mid jan

   [Mother]: Okay so I need to meet you guys in [City H] before then or same day?

   [Mother]: I would love to come get them for Xmas but I only have two days off

9. It was the mother’s evidence and the case of the State Central Authority that from 12 December 2014 the mother withdrew any favourable consideration for the children relocating with the father to Australia and or relocating to Australia herself.  It is the mother’s evidence and the case of the State Central Authority that after 12 December 2014 all communications between the parents were for the purpose of her collection of the children so that they could live with her in New Zealand after the father went to Australia, if he ever did.  I say “if he ever did” because the mother’s evidence was that, notwithstanding the father’s clear statements in text messages which are before the Court, that he was leaving to go to Australia and would be working and living here, the mother never really in her heart of hearts considered that he would go.  Her evidence was that the father is a man of much talk and little action.  However, the history of this case does not bear put the mother’s impression.

10. The father’s evidence was that, following the texts on 12 December 2014, he considered the mother’s position more carefully and concluded that she could not cope with the children.  He continued to prepare to move himself and the boys to Australia.

11. The mother sets out messages which occurred on 28 December 2014 as follows: 

    [Mother]: [Mr Te Mata], why is it you have to behave this way?  I’m so disappointed.. I want to talk to the babies please.  If you’re going to create barriers and issues I will be approaching a lawyer.

    [Father](an hour later): They havnt been wif me for last couple of days, tx u wen they gt bk.

12. In spite of the mother’s consciousness that she could access legal advice, she has never done so in this case.  At least until she took her application to the Central Authority in New Zealand. 

13. On 31 December, 2014 there is another text interchange between the parties extracted by both of them in their evidence, albeit it seems somewhat selectively extracted by the mother.  The text message in its entirety commences at 13.24 hours with the mother asking:

    [Mother]: So what’s the plan?

    [Father]: Wot plan?

    [Mother]: Have you booked flights?

    [Father]: Nah still waitn on passports, hoping to leave beginning feb.  Boys were waiting for u to ring, il b with them tomoro so il ring u so u can talk to them if thats ok?

    And a full version of the message indicates that the mother then went on to speak about the time that she would be available to speak with the children after her work had concluded.

14. In cross examination today, the mother conceded that she understood that the father was waiting on passports for himself and the children and that the flights related to himself and the children.  She says that she did not believe that at the time she ought to have indicated that she no longer accepted that the father would be leaving New Zealand with the boys to live in Australia.  She still considered matters to be fluid and up in the air.  That evidence was unconvincing.

15. There are text messages relied upon by the mother which appear in her affidavit of 22 January 2016 and which start on 7 January 2015 with the father asking:

    [Father]: Wot’s up

    [Mother]: Hey, I’m going to be in [City H] from 19th to the 23rd January for work..  You reckon you guys could get to [City H] during that week?  I will be busy during day but would love to have them for a night at my hotel..  I can help with gas from where you guys will be..” 

    [Mother]: And please if you could make an effort not to shut me out and treat me kindly would be much appreciated. 

    [Mother]: [B’s] bday Is that week so would be cool to see him.

16. On 18 January 2015, the mother sent a text to the father which does not appear to be acknowledged.  It read, “So I fly to City H tomorrow and I’m there till Friday.. Where will you guys be?”  From that text I infer that there was no fixed plan for the father to be in City H with the boys.  There was a desire and a hope on the part of the mother that he would be, but no details had been settled.  In fact, by this stage, the father had received the passports for himself and the children and they were all booked on a flight to leave New Zealand on 20 January 2015.  The State Central Authority’s case was that the mother intended, and the father agreed, that the mother would collect the children from the father at the conclusion of her stay in City H so that the children could reside in her fulltime care and the father could re-locate, by himself, in Australia.  However, the mother’s evidence to that effect is uncorroborated and there is much evidence to support the father’s alternative case.

17. On 19 January 2015, at 5.11 am, the mother wrote to the father by text saying, “I’m really looking forward to seeing the boys.  I forgot to tell you I’ve got some gas money for you.” This evidence is supportive of there being no set plan of dates and times or an assurance by the father that the boys would be in City H to see the mother. 

18. At 15.06 on 19 January 2015, the mother wrote again to the father in the following terms:  “Stink,was hoping I was gonna to see the boys while I’m here. [Mr Te Mata]. L I’m near ready to just give up and cut my ties with them and wait till they’re older to build a relationship with them..I’m really gutted”.

19. The mother did not see the children in City H in January 2015.  In fact, she has not seen the children face-to-face since June 2014, in spite of being in the same country as they were from June 2014 to January 2015.  She has not seen them in Australia, either.  There has been contact by Skype, text and telephone.

20. Both parents gave evidence that the text messages which were in evidence do not represent all communications between them and those conversations were augmented by telephone discussions.  The father’s evidence was that the telephone calls were in the same vein as the text whereas the mother says that during the telephone calls, the parents discussed and agreed that the boys would return to reside with the mother permanently whilst the father went to live in Australia.  The mother’s evidence is difficult to reconcile to their text discussions.  I am satisfied that the parents lack the necessary guile to compartmentalise their communications in the way described by the mother. The father’s version is more probable but it was not without inconsistency and, sometimes, his evidence was plainly wrong.

1. The father was a straightforward witness.  He deposed that he had obtained the mother’s consent and that after 31 December 2014 “[Ms Butler] was subsequently informed that I was departing with the children for Australia on 20 January 2015.” That evidence is neither correct nor accurate.  In cross examination, it became apparent that the father was drawing inferences on statements and actions of the mother.  I am satisfied that at no time did he tell the mother that the children and he were leaving on 20 January 2015.  However, I am satisfied that he told the mother that he and the children would be moving to Australia for him to undertake employment and reside permanently and that he was just waiting for passports to be issued before he could go.  It could not have been lost on the mother that, once the father had passports, he had the means to remove the children.  She referred to her ability to get a lawyer but took no steps to prevent the father from leaving New Zealand with the boys.  The father had indicated that the passports would arrived by mid February 2015 and the boys and he would leave for Australia.

2. I am further satisfied that the mother was at all times aware of the father’s intention to relocate to Australia with the children and did not indicate that he should desist.  She remained silent when he said he was obtaining passports for the children and saying that that was what he was awaiting before his children would book tickets to fly to Australia.

3. The father’s evidence about consent was inaccurate and wrong.  However, I do not infer that he gave evidence dishonestly or deceptively.  His evidence was consistent with his impressions and personal perceptions.  I find, however, that it meets the objective standard of the mother having consented.  I found him to be a straightforward and reasonable witness, who gave evidence freely and confidently. 

4. The mother gave evidence by telephone, and it was harder to assess her demeanour.  She was loquacious.  Prior to her evidence starting, counsel for the State Central Authority was provided with an opportunity to obtain the mother’s instructions on the content of the father’s cross examination, and she did so.  Counsel then proceeded to put to the father various instructions which she had received.  This included that the mother had never consented to the children being removed from New Zealand, and that was a proposition with which the father disagreed.  It included that, after 12 January 2014, the mother considered that she was going to collect the children at the end of January, whilst she was in City H, and take them back to live with her in I Town.

5. It was put to the father that the mother’s reference to being able to spend one night with the children in a hotel was so that they could experience what it was like to stay in a hotel and order room service.  I must say that, to me, that has a ring of truth about it and is evidence of the mother which I accept.

6. It was put to the father that he had not told the mother when the flights were booked.  The father disagreed, but he could not remember telling her the precise date.  I am satisfied that the father did not tell the mother of the date upon which he and the children would depart.

7. It was specifically put to the father that the mother would give evidence that she called him in Australia in February 2015, on the phone line of the father’s sister’s residence, and spoke to him and that she did not ask anything about returning the children, because she did not want to aggravate the situation.  There appeared to be agreement with the father’s version of that conversation.  That is, the mother asked after the children, asked about the flight, asked whether the children were jet-lagged and how they were currently but did not ask for the children to be returned nor admonish the father for removing them.

8. When the mother gave viva voce evidence, however, she was more expansive.  This was, to an extent that I find inconsistent with the version conveyed through Ms Porritt’s cross examination.  For instance, she said in the early conversation in February 2015, where she had told Ms Porritt that she had not wanted to aggravate the situation, that she questioned the father as to why he took the children out of the country without letting her know, and that the father had responded that she did not deserve to know, and that he was not going to tell her and that he was critical of her earlier threat to considering getting a lawyer or obtaining legal advice (see paragraph [23]).  The mother’s evidence, as given in re-examination by counsel for the State Central Authority, impressed me as being a recent invention in relation to her conversation with the father on 15 February 2015 and given in some desperation to make the case of the State Central Authority.

9. According to the mother, from 12 December 2014, she was planning to have the children in her care, as a consequence of the father moving to Australia, if he did move.  There is an absence of corroborative or compatible evidence to that proposition.  For instance, in all of the text messages which are set out in the material, there is not one suggestion of the father packing up the children and bringing them to City H to be taken by the mother at the end of her working trip, on or about 23 January 2015.  There is no mention of any belongings of the children being handed to her at the end of her time in City H, so that the three of them could then return to I Town.  There is no mention of what keepsakes the children would want.  There is no mention of a specific time for a handover.  In fact, there is no mention of a specific meeting. 

10. Under cross examination, the mother explained that when she handed the children over to the father in June 2014, she handed them over without belongings so she expected they would be returned to her with nothing.  To the extent that the father had articles that he had purchased for use by the children, she thought that the father would sell them rather than give them to her.  All in all, her evidence was improbable.

11. The text messages that the mother relies upon include a message sent by her on 19 January 2015, some 10 hours after the message referred to in paragraph [25] hereof and it reads as set out above in paragraph [26]: “Stink,was hoping I was gonna to see the boys while I’m here. [Mr Te Mata]. L I’m near ready to just give up and cut my ties with them and wait till they’re older to build a relationship with them..I’m really gutted”.

12. It is difficult for me to reconcile the mother’s last text message, on 19 January 2015, with her supposed plans to be collecting the children from the father on 23 January 2015.  There is also no reference to any communications between 19 January 2015 and 23 January 2015, and that lack of complaint appears to me to support the father’s version when taken with the assertion by the mother that she did not hear from the father after he and the boys left the country on 20 January 2015.

13. I am unable to accept the mother’s version of the telephone conversation that she had with the father when she spoke to him at the home of his sister in February 2015.  I prefer the evidence of the father as to the content of the call.

14. The mother’s evidence is that she found her sister-in-law’s number on Google and placed a call to it.  The mother had stayed with the father’s sister for some three months in 2013, when the mother visited Australia to see if she could find employment.  If I accept the mother’s evidence on this point, she has known since early February 2015 where the children were and where they could be contacted.

15. The mother conceded that at no time until she made her application via the New Zealand Central Authority, and it was, in due course, filed in this court and then served on the father, that she had stated to the father that she required the children to be returned to New Zealand.

The law about consent

1. The law, I accept, is as set out on behalf of the State Central Authority and Ms Porritt’s helpful outline of case filed on 8 February 2016.  Consent and acquiescence are different and discrete concepts.  Both were dealt with by the Full Court of this Court, in Wenceslas & The Director-General, Department of Community Services [2007] FamCA 398, in the joint judgment of May and Thackray JJ, where, at page 246, they said:

   The defences of 'consent” and “acquiescence” are quite distinct. Regulation 16(3) makes clear that mere “acquiescence” in the removal of a child will not enliven the discretion of the Court to refuse to order return of the child. As Wall J said in Re M (Abduction) (Consent: Acquiescence), “Consent must arise before the act of removal or retention: acquiescence can only arise after such an act”.

2. In the context of consent, May and Thackray JJ proceeded to review the United Kingdom authority and, in particular, that of Hale J, as she then was, in Re K (Abduction: Consent) [1997] 2 FLR 212, in which her Honour said at 217–18:

   It is obvious that consent must be real.  It must be positive and it must be unequivocal.  But that is a separate issue from the nature of the evidence required to establish it.  There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing.  It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument.  There may also be circumstances in which it can be inferred from conduct.

3. May and Thackray JJ, in Wenceslas, concluded as follows, and relevantly for this case:

   [264] It seems to us that the views expressed by Hale J allow for the vagaries often associated with the way in which parents communicate in matters relating to their children. As presently advised, we are of the view that consent can be inferred from conduct; however, we are also of the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.

4. Applying that statement of law to the facts in this case, I am satisfied that there was never express or written consent by the mother to the removal of the children from New Zealand on 20 January 2015.  There was certainly an expectation that they would be moved, and there was no endeavour to prevent them being removed.  However, that doesn’t equate to consent on the facts of this case.

The law about acquiescence

1. As an alternative to consent, I will now turn to consider whether there was acquiescence on the part of the mother with the children remaining in Australia; I will take into consideration whether the acquiescence occurred immediately after the mother was aware that the children had been taken from New Zealand, and whether there was any act inconsistent with the father’s removal of the children either by the mother, or on her behalf, until she filed the application in this Court, almost 11 months later.

2. In the interpretation of acquiescence, Lord Browne-Wilkinson in Re H (Minors) (Abduction: Acquiescence) [1997] 1 FLR 872, provided the following applicable principles:

   (1) For the purposes of article 13 of the Convention, the question whether the wronged parent has "acquiesced" in the removal or retention of the child depends upon his actual state of mind.  As Neill L.J. said in In re S. (Minors) (Abduction: Acquiescence) [1994] 1 F.L.R. 819, 838: "the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question whether the applicant acquiesced in fact”.

   (2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent. 

   (3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law. 

   (4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.[6]

   [6] [1997] 2 All ER 237.

3. Absence of court action does not necessarily amount to acquiescence, however, a delay, particularly unexplained delay in taking action has been found to be an indication of acquiescence.  Lord Justice Butler-Sloss in Re F (A Minor) (Child Abduction) [1992] 1 FLR 548, CA concluded that “acquiescence is a combination of a sufficient period of time coupled with inactivity by the parent without the child, to demonstrate an implied acceptance of the changed position”. In an earlier case, Master of the Rolls, Lord Denning in Re P (GE) (An Infant) [1965] Ch 568 said:[7]

   Quite generally, I do not think a child's ordinary residence can be changed by one parent without the consent of the other. It will not be changed until the parent who is left at home, childless, acquiesces in the change, or delays so long in bringing proceedings that he or she must be taken to acquiesce. Six months' delay would, I should have thought, go far to show acquiescence. Even 3 months might in some circumstances. But not less.

   [7] Re P (GE) (An Infant) [1965] Ch 568, 585:

4. Delay in taking action is further supported in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 (“W & W”), where Waite J held that a father’s inactivity for some 10 months after learning of his wife’s decision not to return amounted to acquiescence.  Acquiescence due to inaction was also found in Re D (Abduction: Acquiescence) [1999] 1 FLR 36 where a mother took no legal advice for almost a year and was only prompted to do so when she learnt that the father had been imprisoned.

5. In applying these findings to the facts in this case, there is evidence that the mother went to the Central Authority in New Zealand in May 2015, but no documents were signed by her, or prepared on her behalf, until November 2015.  The mother, in her evidence, alludes to the fact that she wanted to know precisely where the children were before making any application.  I find that difficult to accept, given her evidence that she went to the Central Authority in New Zealand in May 2015. I do not accept that the Central Authority in New Zealand would have told the mother that she could not proceed with her application on the basis that the children were in Australia but not necessarily at the last known address of the paternal aunt.

6. There is evidence of numerous communications between the mother and the father in 2015.  None of the communications relate to, or cover, or include a request by the mother to bring the children back to New Zealand. 

7. I am satisfied on the facts of this case that the mother did acquiesce to the retention of the children in Australia and that her actions prior to the removal of the children were consistent with having provided her consent, although the consent was not express or written.

8. In coming to my conclusion I place reliance upon the facts which occurred prior to the children’s removal as providing context to the mother’s lack of objection to the father’s retention of the children in Australia.  The mother did not object to the children being in Australia for almost 11 months following.  The lack of effort to have the children returned to New Zealand when viewed in the context of the mother’s general agreement and expectation that the children would be taken by the father to live in Australia amount to acquiescence.

9. Being satisfied that an exception is made out, pursuant to Regulation 16(3), I have a discretion to refuse to return the children to New Zealand.  In that respect, I adopt the statement of law set out by the State Central Authority at paragraph 24 of Ms Porritt’s Outline of Case as to the matters which can inform the exercise of my discretion.  It refers to factors from Waite J’s decision in W & W.  These are not exhaustive factors.  However, in the circumstances of this case, I do think that they cover the field adequately, particularly having regard to the tender years of the children.  At this point, I can take the children’s interests into account although their best interests is not the paramount consideration.

10. I am satisfied that New Zealand is a comparatively suitable forum to determine the children’s future in any substantive proceedings.  In both New Zealand and in Australia, the best interests of children are either the paramount, or a significant, consideration to be taken into account.  The likely outcome of the substantive proceedings is, I think, likely to be similar in either jurisdiction.  They will be determined in accordance with the children’s best interests.  Anything more than that I cannot say because this is a forum argument and I do not have all of the information or evidence that would be before any Court making a parenting determination (and neither should I).

11. The children have been in the care of the father since June 2014, and they have been in Australia in the father’s sole care since January 2015.  They are very young children.  The majority of their lives have been spent in the care of the father and this is a direct consequence of the action or inactions of the mother.  It has certainly been her expectation that the father would be caring for the children.  I find a consequence of the acquiescence is that the boys have lived continually and satisfactorily with the father in Australia since January last year.  I am satisfied that it would be disruptive to move them now either from Australia or from the father’s primary care.

12. There is no adverse the situation which would await the father if he was compelled to return to New Zealand.  He is a New Zealand citizen.  He has said that he may find it harder to obtain employment in New Zealand than here, but, then again, he has recently lost his job here too. 

13. I take into account the anticipated emotional effect upon the children of an immediate return to New Zealand and have no difficulty in thinking that if the father was able to accompany them it would be much less emotionally jarring for the children than if he were not.  However, whether he does so is up to him.

14. I take into account the extent to which the purpose and underlying philosophy of the Convention would be at risk of frustration if an order to return was to be refused.  The State Central Authority submits that the objects of the Convention may be frustrated if a return order were to be refused in this case.. It was submitted that returns discourage child abduction and retention and make it clear to those who might be tempted to engage in this conduct that it is conduct which will ordinarily fail.

15. I am not persuaded that allowing the children to remain in Australia undermines the philosophy of the Convention.  The exceptions to mandatory return are as much an element of the Convention as is mandatory return.  I am not satisfied that my refusal to return the children in this case will in any way undermine the philosophy of the Hague Convention.  The Hague Convention was not intended to, and nor does it, apply to every case where a parent has unilaterally and without the consent of another moved children across an international border.  This is not a case of hot pursuit.  The mother did not object to the father preparing himself and the children for a move to Australia: she did not object to him obtaining a passport for each child.  She did nothing to inform the father that she required that the children be returned until after almost 11 months had elapsed and the anniversary of the removal drew near.

16. I am satisfied that my discretion to refuse return in this case should be exercised.

1. Through the good offices of the independent children's lawyer, a mediation occurred over three sessions between the mother and the father, and I have a suite of orders which has already been agreed between the mother and the father which can be made in the event that I refuse to return the children to New Zealand, which I do.  I will now turn to those matters under another proceedings number but note that for the purpose of this Hague proceeding, the parties did sensibly prepare for the two possible outcomes, and whereas the children will not go back to Australia, this does not mean that the mother will not be seeing the children in fairly short compass.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 9 February 2016.

Legal Associate: 

Date:  22 February 2016