State Central Authority & Castillo

[2015] FamCA 792

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & CASTILLO [2015] FamCA 792

FAMILY LAW – CHILD ABDUCTION — 1980 Hague Convention — alleged wrongful retention of children — habitual residence — application made more than one year after alleged wrongful retention — question of whether the children are settled in Australia —exceptions to return — grave risk — child’s objections to return — is there a residual discretion to return children when they have been found to be settled?

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPLICANT: State Central Authority

RESPONDENT: Mr Castillo

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 7561 of 2014

DATE DELIVERED: 10 September 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE:

LAST SUBMISSION:

12 and 23 February,  13 and 18 March 2015

30 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Porritt

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

COUNSEL FOR THE RESPONDENT: Ms Renwick

SOLICITOR FOR THE RESPONDENT: Eugene Naidoo & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Harris

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

Orders (as amended 15 September 2015)

IT IS ORDERED THAT:

1.The application of the State Central Authority filed on 27 August 2014 be and is hereby dismissed.

2.My reasons for decision this day will be published subsequently.

3.Any appeal in this matter to be filed within 30 days of the publication of my reasons for decision to the parties.

4.The request for the appointment of the independent children’s lawyer be discharged.

IT IS REQUESTED:

5.That the Manager of Child Dispute Services of this Registry of the Court arrange for the family consultant, Ms G, to explain the Orders to the children L, male, born … 2001, B, female, born … 2005 and Y, male, born … 2008 on a date and time to be fixed.

IT IS FURTHER REQUESTED:

6.That the Australian Federal Police remove the names of the children L, male, born … 2001, B, female, born … 2005 and Y, male, born … 2008 from the Airport Watch List at all points of international arrivals and departures in Australia.

IT IS DIRECTED:

7.That this Order be sent electronically to the Australian Federal Police by this Registry of the Court.

AND IT IS NOTED that Ms Renwick of Counsel who appeared at the trial for the respondent father and Ms Smith, the independent children’s lawyer, attended at Court this day although the parties had been excused from attendance.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Castillo 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 821 of 2008

State Central Authority

Applicant

And

Mr Castillo

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the State Central Authority (“SCA”) filed on 27 August 2014 seeking the return to New Zealand of the children L born in 2001 (“L”), B (“B”) born in 2005 and Y born in 2008 (“Y”) pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).

2. The respondent is the father of the children. He was born in Country A in 1980 and is 34 years old. He retains his Country A citizenship and is also now a citizen of New Zealand. He resides in Australia with the three children and his uncle, Mr C. The father is employed on a full time basis in Suburb D.

3. The requesting parent, at whose behest the application is made, is the children’s mother. She was born in Country A in 1980 and is 34 years of age. Like the father, she holds dual Country A–New Zealand citizenship. She resides in New Zealand with her new partner, Mr E, and their infant son, F.

4. This decision has taken far too long to be published and I wish to apologise for the delay. My dismissal of the return application is unlikely to be an unexpected outcome for the parties but they, and most particularly the requesting parent, and the children deserved a more speedy determination. I also apologise to the two Central Authorities whose work I must acknowledge is made harder by undue delay.

5. In summary, the issues which arise for determination are:-

   (a)        Habitual residence where I find that the children’s place of habitual residence was New Zealand as at the date of the alleged wrongful retention of them by the father, 9 June 2013. Contrary to the submissions made on behalf of the father, the habitual residence of the children did not change when they left New Zealand in April 2013.

   (b)       As the application for a return order is made more than one year after the alleged wrongful retention, I have determined whether the children have become settled in their life in Australia. I am satisfied that the respondent father has established that the children have become settled in their new environment.

   (c) Having regard to my finding that the children have become settled, I am of the view that the jurisdiction to make orders under the return application of the Regulations, as opposed to the discrete access provisions of the Regulations, is exhausted. Specifically, I am satisfied that there is no power within the Regulations, including reg 15(1) to order return.

   (d)       In case I am wrong about the children being settled and/or what flows from my finding in that respect, whether the following exceptions to mandatory return apply:-

   (i)Acquiescence where, contrary to the father’s contention, I am not satisfied that the mother acquiesced or subsequently consented to the retention of the children (or any of them), in Australia.

   (ii)Whether the children object to return to New Zealand. I am satisfied that L does object to return in the relevant sense but that B and Y do not.

   (iii)Whether there is a grave risk that the return of the children (or any of them) under the 1980 Convention[1] would expose them (or any of them) to physical or psychological harm or otherwise place them (or any of them) in an intolerable situation.

   (e)       If an exception to return was found to apply whether I would exercise my discretion to refuse return of the children to New Zealand. On the facts of this case, and having regard to a concession by the applicant that the children not be separated from one another, I would. 

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

6. The consequence of this decision is that L, B and Y will remain in Australia. There are no arrangements of which I was made aware of for the children to spend time with the mother. The 1996 Convention[2] has not entered into force between Australia and New Zealand so there is no impediment to this Court making parenting orders in relation to the children as and when a parenting application is filed. Given the undue delay in the delivery of this decision, any subsequent proceedings will be expedited upon those proceedings being brought to my attention although those proceedings need not necessarily be heard by me.

   [2] Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at the Hague on 19 October 1996.

Background

1. The mother and father were married in Country A in 1999 and subsequently immigrated to New Zealand, where all three of the children were born. The parents separated in May 2012. In July 2012, the father relocated to Australia and remained in contact with the children via telephone and Skype. He also visited them in New Zealand over November/December 2012.

2. In early 2013, the mother and father agreed that the children would travel to Australia. There is some dispute about precisely when this agreement was reached; regardless, the father returned to New Zealand for the purpose of collecting the children. He and the mother then travelled with the children to Australia on 4 April 2013. This was the last occasion on which any of the children were in New Zealand.

3. The mother remained for “a total of 4 days while they settled in”[3] after which she returned alone to New Zealand.

   [3] Form 2 application, “Affidavit of Ms Castillo in Support of Application for Return of Children to New Zealand”, sworn 21 July 2014 at [18].

4. The nature of the journey to Australia is a fact in issue in these proceedings. According to the mother, the children were to visit for a holiday and it was agreed between the parents that the children would remain with the father in Australia for a period of three months, at which time they would return to New Zealand and her care. However, the father denies that this was the case and claims that the agreement was for the children to move to Australia permanently.

5. Prior to travelling to Australia, the mother and father attended at the office of a Justice of the Peace on 3 April 2013, where they signed a document entitled “Agreement letter for allowing the kids to live in Melbourne, Australia temporarily with Mr Castillo with the conditions as followed (sic)”.[4] The document states (note that all references to “he” are to the father and all references to “me” are to the mother):

   [4] Form 2 application, “Affidavit of Ms Castillo in Support of Application for Return of Children to New Zealand”, sworn 21 July 2014, Annexure “B”.

1. He will have to provide [for] all the needs of the kids.

2. He will make sure that the kids are safe at all times.

3. He will need to ask me first when it comes to kids. It is only me and him who will decide in kids matter (sic).

4. He will never keep the kids away from me.

5. He will be the temporary custodian but he can never disagree with me when I decide to take the kids back at (sic) my care.

   These conditions must be followed and agreed with both parties.

This document will be discussed at various points in these reasons. I will refer to it as “the Agreement”.

1. The mother’s case is that she returned to Australia on 9 June 2013 for the purpose of collecting the children and returning them to New Zealand but the father refused to allow this. It is at this point, the SCA alleges, that the father wrongfully retained the children in Australia within the meaning of the Regulations. The father’s evidence is that he was, at the time of the mother’s visit, under the impression he and the mother might attempt reconciliation, though when the mother told him that she had commenced a new relationship the father realised that he had been mistaken. The mother claims that this was the impetus for the father’s refusal to allow the children to return to New Zealand (the alleged wrongful retention). The father concedes that he was upset about the mother’s new relationship but maintains that, during this visit, the mother did not request that the children be returned to New Zealand.

2. The mother deposed that,[5] upon returning to New Zealand, she sought legal advice about how to secure the return of her children. This was an issue at trial.

   [5] Form 2 application, “Affidavit of Ms Castillo in Support of Application for Return of Children to New Zealand”, sworn 21 July 2014 at [22].

3. The mother again flew to Melbourne in October 2013. Her evidence was that this was a final attempt to convince the father to allow the children to return with her to New Zealand.[6] The father, on the other hand, asserts that the mother’s trip was simply for the purpose of her spending time with the children.[7] In any event, when the mother returned to New Zealand, the children remained in Melbourne with the father. This was the last occasion on which the mother had face to face time with the children. They were then 12, eight and five years of age.

   [6] Form 2 application, “Affidavit of Ms Castillo in Support of Application for Return of Children to New Zealand”, sworn 21 July 2014 at [24].

   [7] Form 2 application, “Affidavit of Ms Castillo in Support of Application for Return of Children to New Zealand”, sworn 21 July 2014 at [25].

4. The mother deposed that “within weeks” of returning to New Zealand she discovered that she was pregnant.[8] According to the mother,[9] she was becoming stressed due to the father’s wrongful retention of the children and this was causing problems with her pregnancy, so she decided to wait until after the baby’s birth to pursue the return of L, B and Y.

   [8] Form 2 application, “Affidavit of Ms Castillo in Support of Application for Return of Children to New Zealand”, sworn 21 July 2014 at [25].

   [9] Form 2 application, “Affidavit of Ms Castillo in Support of Application for Return of Children to New Zealand”, sworn 21 July 2014 at [25].

5. The baby, F, was born in 2014. Thereafter, the mother again sought legal advice. She deposed[10] that she was told to seek legal advice within Australia, so she contacted a solicitor in Melbourne and was referred to another lawyer in the same firm who had family law experience. It was this lawyer who, she says, finally informed her of the Convention on the Civil Aspects of International Child Abduction (“1980 Convention” or “the Convention”),[11] and to which both Australia and New Zealand are contracting states.[12] In May 2014, the mother contacted the New Zealand Central Authority and was then advised about how to apply for the return of the children under the legislation which implements the 1980 Convention into New Zealand law.

   [10] Form 2 application, “Affidavit of Ms Castillo in Support of Application for Return of Children to New Zealand”, sworn 21 July 2014 at [26] – [27].

   [11] Concluded at the Hague on the 25 October 1980.

   [12] Form 2 application, “Affidavit of Ms Castillo in Support of Application for Return of Children to New Zealand”, sworn 21 July 2014 at [27].

Procedural History

1. On 27 August 2014, the SCA filed a Form 2 application for an order that the children be returned to New Zealand. On 3 September 2014, Cronin J made ex parte orders restricting the father’s capacity to travel with the children outside the State of Victoria, placing the children on the Airport Watch List and ordering the father to surrender the children’s passports to a Registrar of the Family Court. The matter was adjourned until 10 September 2014, on which date there was a further adjournment to 29 September 2014. On 29 September, Cronin J made orders transferring the matter to my docket and appointing an independent children’s lawyer.

2. The matter first came before me for mention on 3 October 2014. On that date, I made an order, inter alia, that the father file and serve a Form 2A response in which he was to specify any applicable exceptions to return upon which he would seek to rely in opposition to the return of the children to New Zealand. I further ordered the preparation of a Regulation 26 report. The resulting report was prepared by Ms G, a family consultant with this Registry. Ms G interviewed the children and the father in person at the Registry and interviewed the mother by telephone. Ms G also consulted with the children’s school, H School, and read the material on the court file at that time up to, and including, Folio 8. The Regulation 26 report was published on 21 November 2014.

3. The matter was again mentioned before me on 10 December 2014, when it was set down for final hearing on 12 and 13 February 2015.

4. On the first day of the hearing, 12 February 2015, the mother gave evidence via audio-visual link. While counsel for the father did not anticipate that her cross examination of the mother would take more than 45 minutes to one hour, this turned out to be an underestimation. The challenges of electronic communication coupled with the fact that English is not the mother’s first language meant that the mother’s evidence was incomplete when I adjourned for the day to enable the mother to collect her infant son from day care.

5. In order to appear, the mother had to attend at a court in New Zealand because she does not have a personal computer. Due to the difference in facilities between our Court and that in New Zealand, the cost to the Family Court of the audio-visual link was extremely high. I was therefore reluctant to arrange for the mother to return to the New Zealand court the following day to continue her evidence. Instead, I adjourned until 23 February 2015 and requested those representing the SCA to make arrangements for the mother to use a laptop computer for the purpose of completing her evidence. My request was not met.

6. Cross examination of the mother continued, via audio-visual link, for three hours on 23 February 2015, after which I adjourned the matter, part heard, to 13 March 2015. During her cross examination on 23 February, the mother emphasised that she had sought legal advice from various different organisations on the question of how to get her children returned to her. She also stated that, in 2013, she had asked the father, using the Viber messaging application, to return the children to her. She said she could locate these alleged exchanges between herself and the father and provide evidence of them to the Court. As such, I made orders for the SCA to provide information to the other parties in relation to the four sets of legal advice that the mother gave evidence she received in 2013 and 2014, as well as any Viber messages from the mother to the father evidencing her alleged requests for return of the children.

7. On 13 March, the mother’s evidence was concluded by telephone. The father was then cross examined and his evidence was incomplete when I adjourned the matter to 18 March 2015.

8. On 18 March, the father’s evidence was completed and Ms G, the Regulation 26 report writer, was cross examined by counsel for each of the parties. In the interests of completing the case that day, I allowed for final submissions to be made in writing and directed that the parties file and serve these as follows:

   (a)        the respondent father by 2.00 pm on 30 March 2015;

   (b)        the applicant SCA by 2.00 pm on 30 March 2015;

   (c)        the independent children’s lawyer by 2.00 pm on 23 April 2015.

9. The first two deadlines were met. The independent children’s lawyer sought the consent of the parties to extend her time period by one week; consent was granted and her final submissions were filed and served on 30 April 2015.

Overview of Legal Issues

1. It is alleged that the father wrongfully retained the children on or about 9 June 2013, when the mother says she came to Australia to retrieve the children and the father prevented her from doing so.

2. Regulation 16 of the Regulations sets out the circumstances in which the Court is obliged to make a return order. That regulation provides:

   (1) If:

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

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

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

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

   (1A) For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:

   (a) the child was under 16; and

   (b) the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and

   (c) the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and

   (d) the child’s removal to, or retention in, Australia is in breach of those rights of custody; and

   (e) at the time of the child’s removal or retention, the person, institution or other body:

   (i) was actually exercising the rights of custody (either jointly or alone); or

   (ii) would have exercised those rights if the child had not been removed or retained.

   (2) If:

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

   (b) the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and

   (c) the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;

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

1. The SCA concedes that the application for return was filed more than 12 months from the date of the alleged wrongful retention. As such, reg 16(2) is applicable in this case and I must determine whether the father has, or has not, established that the children (or any of them) have settled into their new environment. What course is open to me in the event that I find that the father has established that the children have settled into their new environment is a matter upon which the parties differ and I received limited submissions.

2. Regulation 16(3), (4) and (5) provide for five exceptions to mandatory return. These are also called “defences”. Regulation 16 states:-

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

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

   (i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or

   (ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

   (b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or

   (c) each of the following applies:

   (i) the child objects to being returned;

   (ii) the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

   (iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or

   (d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

   (4) For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.

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

3. The father contended that the following three exceptions apply:-

   (a)        That the requesting parent had consented to or subsequently acquiesced in the children being retained in Australia;[13]

   (b)        That there is a grave risk that the return of the children to New Zealand would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation[14]; and

   (c)        The children (or any one of them) objects to being returned to New Zealand[15] and that in each case the objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes,[16] in circumstances where the child has reached an age and attained a degree of maturity which makes it appropriate to take the child’s view into account.[17]

   [13] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)(a)(ii).

   [14] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)(b).

   [15] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)(c)(i).

   [16] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)(c)(ii).

   [17] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)(c)(iii).

4. If one is established, the court has a discretion to refuse to return the child in respect of whom the exception applies. However, in this case, the applicant (and the requesting parent) concede that the children should not be separated. Accordingly, if one child is permitted to stay in Australia, the other children should also remain here.

Evidence

1. There were no objections to the admissibility of evidence.

2. The SCA relied upon the following documents:

   (a) Form 2 application for commencement of proceedings under the Regulations, which includes a statement by the mother in support of the application and authorisation for the SCA to act on the mother’s behalf, as well as two affidavits by the mother in support of her application, sworn on 21 July 2014 and 8 August 2014. The Form 2 application also includes an affidavit sworn on 21 July 2014 by Inger Mai Blackford, a barrister and solicitor of the High Court of New Zealand (detailing the mother’s rights of custody under New Zealand law);

   (b)        outline of case document filed 3 February 2015;

   (c)        affidavit of Ms I, sworn 24 October 2014 (attached to which is the mother’s affidavit sworn 24 October 2014);

   (d)        affidavit of Ms I, sworn 3 March 3015 (attached to which is the mother’s affidavit sworn 2 March 2015); and

   (e)        affidavit of Ms I, sworn 13 March 2015 (attached to which is the mother’s affidavit sworn 6 March 2015).

3. The father relied upon the following documents:

   (a)        his affidavit, sworn 24 September 2014;

   (b)        his affidavit, sworn 13 October 2014;

   (c)        his affidavit, sworn 3 February 2014;

   (d)        his Form 2A answer, filed 14 October 2014;

   (e)        his outline of case document, filed 5 February 2015; and

   (f)        the Regulation 26 Report by Ms G, dated 21 November 2014.

Standard and burden of proof

1. Pursuant to s 140 of the Evidence Act 1995 (Cth), the standard of proof is the balance of probabilities.

2. The SCA bears the onus of proving the children were wrongfully retained by the father, as alleged, which involves whether the children were habitually resident in New Zealand at the time of the alleged wrongful retention of the children by the father.

3. The father bears the onus of proving that the children are settled in Australia.[18] The respondent father bears the onus of proof with relation to any exceptions to return for which he contends. With regard to the exercise of any discretion to refuse to return the children to New Zealand which arises by virtue of an exception to return being made out, the parties bear the onus of proof for the result for which they contend. The best interests of the child principles are relevant to the exercise of this discretion.

   [18] Secretary, Attorney-General’s Dept v TS (2000) 161 FLR 392; 27 Fam LR 376; (2001) FLC 93-063 at [110].

4. In these reasons, a statement of fact is a finding of fact.

Credit and impression of witnesses

1. The requesting parent (mother) and the respondent father gave evidence by affidavit and orally. Each parent was cross examined.

2. Ms G, the family consultant, submitted her report, gave further evidence orally and was required for cross examination. Ms G was a sound and reliable witness whose expert evidence I accept. The same cannot be said for either parent inasmuch as I did not consider either parent to be a reliable witness.

3. The independent children’s lawyer submitted that the mother’s evidence was internally consistent but nonetheless lacked credibility. The independent children’s lawyer further submitted that the mother’s evidence in relation to seeking legal assistance to secure the children’s return was poor and did not show any clear determination on her part to have her children returned immediately. Further, that the mother’s evidence should lead me to conclude that she lacks any real understanding of the amount of time that has elapsed since the children came to Australia in 2013 and the significance of this period for the children; in addition, the mother’s evidence on the matter of whether the children had settled in Australia was “not persuasive … lacked child focus and was self-serving.”

4. The mother’s responses in cross examination about L’s objection to returning to New Zealand were somewhat obdurate. Her evidence was not congruent with a parent who is familiar with the day to day care of a child of 14 years. The mother lacked insight into the extent to which L and his siblings have come to be emotionally dependent upon the father and his uncle and, due to her absence, have become independent of her. The mother clung resolutely to her position that she never relinquished her entitlement to assume day to day care of the children that, therefore, the children are still under her control. It is also apparent that she has missed significant amounts of time in the development of the children’s lives and I had difficulty in accepting her evidence about the extent to which the children have not become settled in their new environment and would assimilate into life in New Zealand.   

5. In terms of the mother’s claims that she is afraid of the father and for the children’s safety in his care, the independent children’s lawyer submitted that, with the exception of the Agreement prepared by the mother, ostensibly at the request of the father, it would appear that she in every way facilitated the children’s trip to Australia. I accept that is the case.

6. The independent children’s lawyer submitted that the father’s evidence was generally more credible than that of the mother, despite being partly inconsistent. It was, however, submitted that the father’s evidence in relation to the Agreement between himself and the mother was at best inconsistent and at worst lacking credit. I agree. His evidence in that respect was implausible. Otherwise, the father frequently contradicted himself on other matters so that, in some respects, I still cannot discern his version of events. For instance, his evidence under cross examination in relation to smashing an iPad in the presence of the children.

7. I am satisfied that both parties understand written English. I was mindful to disallow complex questions and required some questions to be re-framed for the sake of clarity. In the result, both parents gave evidence that was in some respects questionable. The mother was not prepared to concede to any evidence which she perceived was inconsistent with the children being returned to her. This resulted in her not making concessions when it would have been reasonable for her to do so, or giving evidence which was improbable. The father’s evidence occasionally lacked consistency to the point that it was not credible.

8. In this case, accuracy in evidence was a hostage to each parent’s individual perceptions of what the best interests of children require the outcome should be. Truth was subordinate to the result each parent seeks. This does not mean that each parent gave deliberately false evidence. Each gave evidence in terms of what he or she believed was the objective truth. Neither parent was an erudite witness but I am not satisfied that either gave evidence with an intent to deceive or to lie. They were just not good witnesses in terms of reliability and accuracy.   

Relevant history emerging from the parents’ evidence

1. As already mentioned above, the parents married in 1999 and subsequently moved to New Zealand from Country A. The children were born in New Zealand in 2001, 2005 and 2008.

2. The mother’s evidence was that, at some point after B’s birth in January 2005, the father began drinking alcohol to excess. This, she deposed,[19] led to incidences of violence perpetrated against her by the father. These alleged incidents were detailed in her affidavit sworn 21 July 2014 at [10] as follows:

   The first incidence of violence occurred when [the father] became angry at me and started bashing household items in anger in front of me and the kids. The second incident occurred when [the father] pushed me and was grabbing at me. I had marks on both my arms from the assault. The last incident of violence occurred in May 2012 when [the father] lost his temper and started physically bashing the iPad and other household items in a rage, the children saw this, and I was afraid [for] my safety and that of the children I called the police and they took [the father] away for the night.

   It is not disputed that, as a result of the last incident mentioned here, the mother obtained an intervention order against the father.

   [19] Form 2 application, “Affidavit of Ms Castillo in Support of Application for Return of Children to New Zealand”, sworn 21 July 2014 at [9]–[12].

3. During cross examination, the father conceded that he had on one occasion grabbed the mother during an argument. He also conceded to having bashed the iPad and other household items in May 2012, when the mother had told him that she wanted to end their relationship. There was, however, some confusion as to whether or not he conceded that the children were present on this occasion. Ms Porritt for the SCA was of the view that the father had admitted the children were present; Ms Renwick for the father believed the father’s evidence to be that the children were not present during the incident. I have reviewed the recording from 18 March 2015 when the father gave evidence in relation to this issue and I am satisfied that the father admitted that the children were present, although his evidence on this point was at times contradictory and unclear.

4. The police case summary report, marked as annexure “A” to the mother’s affidavit sworn 21 July 2014 is also of assistance in resolving this point. In that report, the reporting police officer states: “As a result of the Defendants (sic) actions the victim and her three children locked themselves in a bedroom and phoned Police.” The name(s) of the attending officer(s) are not included in this report and it is unclear on the face of it whether or not those officers actually saw the children but it is more likely than not that reference to the children was made because they were present.

5. It should be noted that Ms G indicated her understanding that the children had been present during the May 2012 incident. During cross examination, counsel for the SCA asked Ms G whether witnessing this incident could have longstanding implications for the way the children view their father. Ms G responded that such an incident could have impacted on the children, in terms of their psychological development, but that long term effects would depend on whether this was an isolated incident or if they had witnessed longer term violence between the parents. Otherwise, I was satisfied that the evidence was relevant to the mother’s assertion that, from time to time after April 2013, she did try to force the children’s return to New Zealand because she was fearful of the father. Having heard all of the evidence, my impression was that there was family violence perpetrated by the father against the mother which cannot be excused but which I am not satisfied gave rise to a lasting imbalance of power in the relationship in favour of the father after separation. Likewise, I am not persuaded that the mother was fearful of the father as they were preparing the children to leave New Zealand, or once the children were in Australia.

6. Returning to the family life in New Zealand, following the May 2012 incident, the parents separated and the father lived temporarily with his own mother until he relocated to Australia in July 2012.

7. In early 2013, the parents agreed for the children to travel to Australia. The mother’s evidence is that she at no time agreed for the children to move permanently to Australia. The father deposed[20] that he and the mother had always planned for the children to move to Australia and it was never their intention that the children should spend only three months in Australia.

   [20] Affidavit of the father, sworn 24 September 2014 at [18].

8. The mother sold a variety of household items, including items belonging to the children. The father’s evidence was that the mother sold these items because they were no longer needed, as he and the mother had agreed that the children were to move to Australia permanently. The mother’s evidence was that she and the father agreed to dispose of the relevant household items as a result of the end of their marriage and division of their marital property. While she agreed that almost all of the household items were sold prior to the children’s departure, she maintained that she had not sold all of the children’s toys and clothing, some of which were kept at the paternal grandmother’s house in New Zealand.

9. Having heard all of the evidence in this regard, my impression is that the mother disposed of a great deal of the family’s household goods and belongings of the children. I find that the sale of beds and whitegoods and other furniture was consistent with the children not returning to New Zealand in the near future or within three months. The mother said that she used the proceeds of sale of the household effects to pay the children’s airfares to Australia.[21] The mother’s disposal of household items on the scale at which it occurred is inconsistent with her having a genuine expectation that the children would return to live with her in New Zealand in the short term or within three months. This follows because she was spending the proceeds of sale of household goods on one way airfares to Australia that she would, on her version of events, require to purchase replacement items (such as beds) for the children on their return.

   [21] Affidavit of the mother, sworn 24 October 2014 at [7] (attached to affidavit of Ms I, sworn 24 October 2014).

10. The mother, rather than the father, transacted the purchase of tickets to Australia. She purchased a return ticket for herself and one-way tickets for each of the children. The father deposed that the one-way tickets were purchased deliberately because “it was always the intention that the children would be living permanently in Australia”.[22] His evidence was that, if it was intended that the children were to return to New Zealand after three months, return airfares would have been purchased as this would have been cheaper than buying two sets of one-way tickets. The mother’s evidence was that she could only purchase one-way tickets due to a lack of funds and that the father had agreed to pay for the children’s return air fares. The father’s evidence was that he sent the mother money for the tickets and that he had paid almost half of the total cost, but could provide no evidence that he had transferred money to the mother for this purpose.

    [22] Affidavit of the father sworn, 24 September 2014 at [19].

11. The father travelled from Australia to New Zealand to collect the children. The day before leaving New Zealand, on 3 April 2013, the parents attended at the office of a Justice of the Peace, where they signed the Agreement set out in [11] above. The mother deposed[23] that the Agreement is evidence that she always intended for the children to remain in Australia on a temporary basis only. The father deposed[24] that the mother presented him with the Agreement the day before they were due to travel with the children to Australia. His evidence was that he believed the mother was having second thoughts about allowing the children to relocate to Australia to reside permanently or that someone had advised her to get such a document signed so that she did not lose “control” over the children. The father deposed that, “[n]ot wanting to cause problems and knowing how excited the children were about moving to Australia”, he accompanied the mother to the Justice of the Peace and signed the Agreement.

    [23] Affidavit of the mother, sworn 24 October 2014 at [2] (attached to affidavit of Ms I, sworn 24 October 2014).

    [24] Affidavit of the father sworn, 13 October 2014 at [8].

12. The father’s evidence was that the Agreement is not an accurate reflection of the arrangement agreed upon by himself and the mother. The mother deposed[25] that the father “tricked” her into allowing the children to go to Australia by signing the Agreement, thereby giving her a false sense of security.

    [25] Affidavit of the mother, sworn 24 October 2014 at [4] (attached to affidavit of Ms I, sworn 24 October 2014).

13. During cross examination, the mother insisted that the Agreement was in fact the father’s idea, as a way to placate her concerns about allowing the children to visit Australia. I do not accept the mother’s evidence in that regard. I am satisfied that the father played no part in the creation of the document which he ultimately signed. The mother agreed that she only showed the Agreement to the father on 2 April 2013, the day before it was signed. The mother agreed that there is nothing in the Agreement stipulating that the children were to remain in Australia for only three months. Her explanation was that this was because of her poor English. I do not accept that was the case. The document is composed with a functional use of English. There would have been no difficulty incorporating a three month time limit into the document.

1. During cross examination, the father maintained that the first time he saw the Agreement was on the day before he travelled to Australia with the mother and children, when she presented it to him and told him that she would not travel, or allow the children to travel, unless he attended upon a Justice of the Peace and signed the Agreement she had prepared. The father said that the tickets were already booked and they were all booked to travel the next day, all he needed to do was sign; thus, he did.

2. Counsel for the SCA asked the father about the contents of the Agreement. He refused to concede that the Agreement said that it was the mother’s decision when the children were to return to New Zealand. My impression was that the father appreciated that the document provided that the children would be returned on her request. The language of the document is unequivocal in this regard. The father’s evidence reflects that he did not then, and does not now, accept the terms of the Agreement notwithstanding that he signed the Agreement as requested by the mother and, thereby, represented to her that he did accept the terms of the Agreement. This is an instance of the father giving evidence that was not credible.

3. I am satisfied that the mother and the father originally agreed that the children would come to live in Australia permanently and that the mother disposed of the family’s belongings consistently with this plan. Then, two days before the children were due to depart the mother changed her mind in part and insisted that the father sign the Agreement. The father signed the Agreement because he thought he had no choice (which is probably correct) but he signed it nonetheless and, thereby, represented to the mother in objective and unequivocal terms that the children would be returned to her upon her request.

4. On 4 April 2013, the mother, father, L, B and Y departed New Zealand. Under Australian law, travellers arriving in and departing from Australia are required to identify themselves and provide certain information through the completion of a passenger card. The mother completed the passenger cards for herself and each of the children. On those cards, which were subpoenaed and produced to the Court, the mother stated that the children were migrating permanently to Australia. The mother confirmed during cross examination that she had been able to read and understand the cards. She also confirmed her appreciation that lying on these cards is a serious matter. She insisted that she had filled in the cards, incorrectly, on the father’s instructions. The mother’s evidence was that the father told her to fill in the cards in this way so that he would be eligible to apply for social security benefits vis-à-vis the children and so that the children could be enrolled in school in Australia. Further, the mother’s evidence was that she did not question the father’s instructions to her because they had an agreement that the children would be returned to her any time she requested. During cross examination on this point, the mother stated, “But you see, I think this — everything of this has been planned by [the father]. That’s why I’m in this position right now.”

5. The father’s evidence was that he did not give the mother any instructions in relation to the passenger cards and, during cross examination, he denied having any conversation at all with the mother in relation to the completion of the immigration cards.

6. Having seen both parents give evidence and be cross examined on this point, I am satisfied that the mother completed the incoming passenger cards without direction from the father, and to reflect an intention on her part that the children would reside permanently in Australia subject to her entitlement to rely, at some future unspecified time, on the Agreement. The import of the mother’s evidence was that she placed great store in the protection she perceived she was afforded under the Agreement to the extent that she could subsequently use her rights under the Agreement to reverse actions and omissions which were inconsistent with its terms, such as representing to the Australian authorities that the children were to reside here permanently or, some months later, allowing the children to remain here after, she says, she wanted them to be returned..

7. After their arrival in Australia, the mother spent four days with the children at the father’s home, thereafter returning to New Zealand. She provided the father with the children’s immunisation and school records so that the children could be enrolled in school in Australia.

8. Upon her return to New Zealand, the mother moved from the four bedroom home she had previously lived in with the children into a one bedroom flat. Her evidence was that she moved out of the larger house because she could no longer afford it and that the funds she had intended to use as a rental bond on a two bedroom home, specifically being funds raised in the sale of household items, were used to pay the children’s airfares. The mother deposed[26] that she “sacrifice[d]” the larger house in order to send the children to Australia to see their father and moved into a one bedroom apartment in order to save money pending the children’s return to New Zealand. The mother’s evidence was not credible on this point. As discussed earlier in these reasons, the mother had disposed of the children’s beds and most of their belongings. I infer from the mother’s conduct that she believed that she would not need their furniture or belongings because she would not have the children residing with her in New Zealand in the foreseeable future.

   [26] Affidavit of the mother, sworn 24 October 2014 at [8] (attached to affidavit of Ms I, sworn 24 October 2014).

9. The mother formed a relationship with Mr E. It is unclear precisely when this occurred. The children and the father had been introduced to Mr E at some point prior to the breakdown of the parental relationship, but did not know him well. During cross examination, the mother denied that the children’s trip to Australia provided her with a good opportunity to consolidate her relationship with Mr E.

10. The mother visited Australia in June 2013 and during that visit stayed at the father’s home. The mother’s evidence was that she came to Australia in order to retrieve the children; however, she told the father that she was in a new relationship, leading him to become very angry. The mother’s evidence was that this was the catalyst for the father’s decision to refuse to allow the children to return to New Zealand. The father’s evidence differed from the mother’s version. He testified that the purpose of the mother’s visit was for the mother to spend time with the children and he stated that he was under the impression that he and the mother would attempt to reconcile. The father’s evidence was that the mother did not tell him in person that she was in a new relationship; rather, she sent him a text message after he had dropped her off at the airport to catch her flight back to New Zealand. The father conceded that he had been angry with the mother, particularly as he had been under the misapprehension that there was some possibility of reconciliation. Nonetheless, the father insisted that she had never mentioned the return of the children during this trip nor, indeed, at any other time prior to May or June of 2014. The father’s evidence was that he found out who the mother was in a relationship with via Facebook rather than from anything which the mother told him in person or in conversation.

11. It was put to the mother during cross examination that her trip to Australia in June 2013, which was less than three months after the children’s arrival, was to visit the children, not to take them back to New Zealand. The mother disagreed with this and stated that she sought to retrieve the children when the three months elapsed. There is nothing in the evidence that corroborates the mother’s evidence on this point. I do not accept that the mother travelled to Australia to collect the children or asked for their return once here.

12. The mother returned to New Zealand. Annexed to the mother’s affidavit sworn 2 March 2015 is a letter from a Mr J at the City K Community Law Centre, dated 27 February 2015, confirming that the mother sought legal advice from the Law Centre on or about 8 August 2014. Annexed to the mother’s affidavit sworn 6 March 2014 is a further letter from Mr J, correcting the date that he saw the mother to 8 August 2013. Mr J’s letter states:

    You obtained legal advice from our office because you said your ex-partner was threatening you, and that you wanted the children returned to your care. You confirmed that the children were living in Australia. I advised you to engage a specialist family lawyer.

13. The mother confirmed that she had informed the lawyer she spoke with at the City K Community Law Centre that the father had been threatening not to allow her to see the children again and, further, threatened to kill her new partner. She conceded that she had not mentioned this in any of her affidavit material, explaining that she did not know that it was relevant to the Hague proceedings. The mother acknowledged that Mr J at the City K Community Law Centre had advised her to engage a specialist family lawyer in August 2013. The mother next saw a community law service in May 2014 who gave her the same advice. In cross-examination about why it took her so long to get information about a specialist family lawyer she said that “Mr J didn’t give me any information who I should call”.

14. My impression is that the mother, vis-à-vis herself and the father, did not in any way agitate for the return of the children whilst she was in Australia.

15. In October 2013, the mother again travelled to Australia and she again stayed at the home of the father. The father’s evidence was that he allowed the mother to stay at his home for the children’s benefit, despite his resentment about her relationship with Mr E. He stated that this had been difficult for him but maintained that there had been no disagreements between himself and the mother during this time. His evidence was that the trip was another opportunity for the mother to visit the children and again denied that the mother had asked for the children to return with her to New Zealand.

16. The mother’s evidence was that the trip was a further attempt to secure the return of the children. According to her evidence, she had by this stage moved from her one bedroom apartment into a two bedroom home. She stated that the move occurred in August or September of 2013. When asked whether, in October 2013, she had purchased beds for the children in preparation for their return to New Zealand, the mother replied that she had not, but, “I can easily get it … because I have the fund[s].” She said that she had wanted to allow the children to select their own beds. When asked whether she had enrolled the children in school in New Zealand when she travelled to Australia in October (ostensibly to collect them), she responded that she had not but that this would be an easy thing to do once they had returned. She agreed that in October 2013 the children would have been in the final term of their schooling for the year. The mother denied that she had merely been visiting the children during this trip to Australia and maintained that her intention had been to take them back to New Zealand. I do not accept that the mother requested that the children return to New Zealand during her visit to Melbourne in October 2013.

17. Asked whether she had considered going to see a lawyer whilst in Australia in June 2013 or October 2013, the mother said that she didn’t know where to find one because she lacked contacts and couldn’t go out because she was spending time with the children, as both of her visits took place during school holidays. The mother said that she was unable to make a phone call or look in a telephone book and she was scared because she was staying in the father’s home. However, the mother conceded that the father was at work for most of the day. She also conceded that she and the children had left the house on occasion, specifically to walk around their school and to go to Coles. The mother confirmed that she had managed on four occasions to access community legal assistance at no cost, but insisted that she was too scared to look in the telephone book or make a telephone call during her visit to Australia. Asked what she was afraid of, the mother said: “Well, I just (sic) so scared of him. Sometimes because — if we go out and we go to a friend’s house they drink and he has got the intention to become violent, so I’m too scared.”

18. Counsel for the independent children’s lawyer suggested that the mother’s alleged fear of the father was inconsistent with her allowing the children to travel overseas to live with the father. The mother’s explanation was that the father had promised not to drink anymore and she wanted to offer him the opportunity to have time with the children as he had not been very involved in their upbringing up to that point. It was then suggested that the fact that the mother stayed at the father’s home during both of her visits was also inconsistent with her alleged fear of the father. The mother stated that on both occasions she had intended to stay at a friend’s house but the father wouldn’t allow her to take the children for overnight visits at the friend’s home and would only let her spend time with the children during the day. In the mother’s view, this was “kind of like controlling me as well, the access for my children.”

19. There were two different friends with whom the mother apparently intended to stay during her visits. The first was Ms M and the second was Ms N. When asked why she didn’t speak to either of these friends about her desire to seek legal advice in Australia, the mother said, concerning Ms M, that she didn’t want to cause conflict because Ms M’s husband was friends with the father and, in relation to Ms N, that she didn’t ask because the matter was too personal and “I can do it myself, rather than asking other people.” She went on to say that neither of these friends knew what was happening and conceded that both of them thought that the children lived permanently in Australia.

20. Counsel for the independent children’s lawyer suggested to the mother that she had a “perfect opportunity” to get legal advice while she was in Australia; the mother again stated that “I don’t have the means of how to find it.” The mother conceded that she can use a computer and Google in particular, but reiterated that she was too fearful to do this while she was in Australia.

21. I am satisfied that the mother did not seek legal advice in order to secure the return of the children to New Zealand. She obtained some legal advice but more as an enquiry rather than as part of any firm resolve to remove the children from the father’s care. The mother did want the children to be able to live with her in New Zealand but it was a desire as opposed to a plan or proposal which she made known to the father or on which she acted. She took no steps to rely on the Agreement. Insofar as the mother sought to rely on a history of domestic violence, perpetrated by the father against her, as indicated earlier in these reasons (see [51] above) I am not satisfied that the mother was in fear of the father in Australia.

22. The mother returned to New Zealand in October 2013. When asked why she had not visited the children since October 2013, the mother responded that the father would not allow her to have overnight time with the children unless she stayed at his home. Thus, she decided not to visit at all “because I am there to see my children, and I want them to stay with me for two weeks, day and night.”

23. The mother deposed[27] that soon after returning to New Zealand after the October 2013 visit, she discovered that she was pregnant. During cross examination, however, she conceded that she knew that she was pregnant prior to the visit. She stated that she couldn’t tell the children because the father threatened to cut off her communication with them if she did. She agreed that she could have obtained some advice about the father’s alleged threats whilst she was in Australia, but did not do so.

    [27] Form 2 application, “Affidavit of Ms Castillo in Support of Application for Return of Children to New Zealand”, sworn 21 July 2014 at [25].

24. The father’s evidence was that he found out about the mother’s pregnancy around January 2014. He stated that he had very little contact with the mother between her October 2013 visit and the time her new baby was born. He maintained that the mother had not at any point prior to May/June 2014 asked for the children to be returned to New Zealand. According to the mother,[28] she was becoming stressed due to the father’s wrongful retention of the children and this was causing problems with her pregnancy, so she decided to wait until after the baby’s birth to pursue the return of the children.

    [28] Form 2 application, “Affidavit of Ms Castillo in Support of Application for Return of Children to New Zealand”, sworn 21 July 2014 at [25].

25. F was born in 2014.

26. According to a letter from a Ms O of P Law Service, dated 25 February 2015 and annexed to the mother’s affidavit sworn on 2 March 2015, the mother sought legal advice from the Law Service on 12 May 2014. According to the letter, the mother was referred to a private lawyer who could offer her the assistance she needed to make the necessary applications in the Family Court. Also annexed to the mother’s affidavit sworn 2 March 2015 is a screen shot of the Victoria Legal Aid (“VLA”) website, which details the ways in which contact can be made with VLA. The mother deposes[29] that she accessed this website in order to make contact with VLA and it was someone there who directed her to Lampe Family Law. The mother deposes[30] that a lawyer from that firm informed her of the 1980 Convention and told her to contact the Central Authority, at which point she contacted the New Zealand Central Authority Wellington. This was at the end of May 2014.

    [29] Affidavit of the mother, sworn 6 March 2015 at [3] (attached to affidavit of Ms I, sworn 13 March 2015).

    [30] Form 2 application, “Affidavit of Ms Castillo in Support of Application for Return of Children to New Zealand”, sworn 21 July 2014 at [27].

27. On 27 August 2014, the Victorian SCA filed the mother’s Form 2 application for return of the children to New Zealand. The application includes the mother’s affidavit sworn dated 21 July 2014.

28. When the mother was asked during cross examination about the legal advice she sought at various times, she confirmed that none of the lawyers she had approached had ever contacted the father and the first that he knew about her using legal means to secure the return of the children was when he was informed of her 1980 Convention application which, she stated, was in June 2014.

29. When the mother was asked why she didn’t make any requests for the children’s return in writing, in light of the fact that she had seen fit to insist on the Agreement discussed above, the mother stated that she had usually made the requests by telephone but had also sent him messages via Viber to the effect that the children should be returned to New Zealand. It was put to her that there was nothing in her material to evidence these alleged messages; the mother responded that she believed she could locate some of the messages but asked for two days to do so. This request was granted but she was nonetheless unable to locate these messages. She stated in evidence, she is now using a different device to the one on which the messages were originally sent and, when Viber is installed on a new device, the history is lost. Thus the mother conceded that she was not able to produce any Viber or other messages to support her assertion that she requested the return of the children on or around June 2013.

1. The mother did provide a screen shot of a Facebook conversation the mother deposes took place between herself and the husband, annexed to the mother’s affidavit sworn 2 March 2015 and marked “B”. This includes the following message from the mother to the father: “I asked you last year to return the children. we (sic) have an agreement. Give me back the kids. they re (sic) suppose (sic) to be back here in new zealand (sic)”. The mother’s affidavit sworn 6 March 2015 includes an annexure, marked “C”, which appears to show the details of when the aforementioned screen shot was taken. While this does not inform the Court of when the conversation took place, the mother deposes that it is the best evidence that she is able to provide. Annexure “C” indicates that the screen shot was taken on 27 May 2014 and it was the mother’s evidence that the conversation occurred on this date as well.

2. The father deposed[31] that the mother did not request the return of the children during any of her visits to Australia or in conversations with the children by telephone or Skype. His evidence was that the first time the mother asked for the children to return to New Zealand was in May or June of 2014. The mother confirmed that she had this Facebook conversation with the father by using B’s Facebook page, to which the mother, at that time, had the password. Accordingly, she conceded that the conversation would have been visible to B. It was suggested to the mother that these messages would make B very upset if she saw them, to which the mother responded, “I’m not sure, I don’t know.”

   [31] Affidavit of the father, sworn13 October 2014 at [10].

3. I do not accept the mother’s evidence that she requested that the children be returned to her in June 2013 or October 2013 or at any time prior to May or June 2014. There is no suggestion that she raised the possibility of return with any of the children or made any preparations for their return. The only evidence which the mother can produce is the screen shot of May 2014, which is conceded by the father.

The children were wrongfully retained

1. An order for return of the children under the Regulations is available where the children have been wrongfully removed or wrongful retained and, in my view, not otherwise. In the context of subregulation 16(1A) there is no issue in relation to the age of the children (all of whom are obviously under 16 years of age) and that the requesting parent had, and was exercising, rights of custody at the time of the alleged wrongful retention. The disputed issue is whether the children were habitually resident in New Zealand immediately before the wrongful retention which the applicant SCA alleges took place on 9 June 2013.

2. Habitual residence is a question of fact in each individual case.

3. A wrongful retention occurs when the permission of a person who has rights of custody over a child, ends either in accordance with the terms of the permission, for instance at the expiration of a specified period of three months or by conduct (words or deeds) which is inconsistent with an intention to return the child. The allegation of the applicant SCA is that the children were wrongfully retained by the father on 9 June 2013 when the mother travelled to Australia with the intention of collecting the children and returning them to New Zealand and the father would not facilitate the return. The date of the alleged wrongful retention (or removal) is significant in the implementation of the 1980 Convention[32] through the Regulations because it is by reference to that point in time that the applicant SCA must establish to the satisfaction of the Court certain jurisdictional facts being the rights of custody, the breach of the rights of custody and the habitual residence of the child. If the Court is not ultimately satisfied that the constituent elements of wrongful removal or retention are present at the relevant point in time, the removal or retention will not be “wrongful” within the meaning of the Regulation and return, in all but certain exceptional circumstances, is not mandatory.

   [32] The full title of which is the Convention on the Civil Aspects of International Child Abduction which was concluded at the Hague on 25 October 1980.

4. The independent children’s lawyer submitted, correctly, that the date of wrongful retention is a fact to be decided by this Court. The SCA and the respondent father treated 9 June 2013 as the date of wrongful retention and ran their respective cases accordingly. The independent children’s lawyer submitted (again correctly in my view) that the SCA had failed to establish that the children were wrongfully retained as at 9 June 2013. However, it was further submitted that, as the father claimed (and the independent children’s lawyer accepts) that the mother did not ask him to return the children until May or June 2014 and the only evidence provided by the mother corroborated that she asked for the children to be returned in May 2014, that I ought to have regard to May or June 2014 as the date on which the father refused to return the children to the mother in breach of her rights of custody. I do not consider that it would be appropriate to proceed to do so.

5. Undoubtedly it is the Court’s function, within the confines of a dispute between parties, to determine whether a child is wrongfully removed or retained within the meaning of the Regulations as at a certain date. This is a Court of private law where individuals, including statutory authorities, are responsible for conducting their own case. The applicant SCA alleges the date of wrongful removal at 9 June 2013 and the father joined issue with that contention. Reliance on that date, 9 June 2013, was unambiguous. Absent an amendment to the application by reference to another date of wrongful retention, it is not for the court to go searching for a date of wrongful retention as an alternative. There may be many reasons why the SCA particularised 9 June 2013, instead of May or June 2014, as the date of wrongful retention. That is a matter between the SCA and the mother.

6. The Court’s function under the Regulations is to accept or reject a case as it is put. It is not the Court’s function to construct a case for one of the parties. I will consider this application as it is put, that is, the father wrongfully retained the children in Australia on or about 9 June 2013. As all parties ran their case on the basis on those assertions of jurisdictional fact and not otherwise. It would be contrary to the principle of procedural fairness for me to have regard to an alternative point in time without putting both parties on notice or according due process on an application to amend the application for return. I would effectively be moving the goalposts after all parties have closed their case and, thereby, deprive them of an opportunity to meet the alternative case with relevant evidence and argument.

7. In the case of LK and Director-General, Department of Community Services[33] (“LK and Director-General”) the High Court considered the principles that go to a determination of habitual residence. The Court made two preliminary observations regarding the criteria for determining a child’s place of habitual residence. First, there are a wide variety of circumstances that bear upon where a child resides and whether that residence is habitual. Second, the past and present intentions of a child’s parents will affect the significance to be attached to particular circumstances, such as the duration of a person’s connections with a place of residence.

   [33] (2009) 237 CLR 582.

8. Regarding intention, the High Court noted that a parent’s intentions will usually be relevant, but not necessarily determinative of habitual residence.  Furthermore, the Court noted that a person’s intentions may be ambiguous. In LK and Director-General, the mother had left Israel with the children on the understanding that if she and the father reconciled they would return to Israel, but if they did not reconcile she and the children would remain in Australia. The High Court found that it was appropriate to have regard to the steps the mother took before and after her arrival in Australia as supporting the mother’s argument that it was her intention to move to Australia unless the marriage reconciled. The High Court drew several points from the ambiguities of the parents’ intentions (emphasis original):

   [32] … because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.

   [33] Secondly, because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually.

   [34] Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.

9. Following the above discussion, the High Court unanimously concluded that a closed set, or a hierarchical set, of criteria would not assist in making a decision which could potentially fall into a very wide range of circumstances. The principles expressed by the High Court are binding on this Court.

10. The father argues that the children became habitually resident in Australia when they came here in April 2013 in accordance with what he asserts to have been the mutual intention of the parents that they reside here permanently. Counsel for the father relied upon the High Court’s endorsement of the statements of the plurality in the New Zealand Court of Appeal case of P v Secretary for Justice, as follows:[34]

    Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called at [22], the underlying reality of the connection between the child and the particular state.

    [34] LK and Director-General, Department of Community Services (2009) 237 CLR 582, quoting P v Secretary for Justice [2007] NZLR 40 at [88] and citing SK v KP [2005] NZLR 590.

11. In terms of defining “settled purpose”, our High Court referred to the United Kingdom jurisprudence and, in particular, quoted the decision of Waite J (as his Honour then was) in Re B (Abduction) [No 2]:[35]

    All that the law requires for a “settled purpose” is that the parents’ shared intentions in living where they do should have a suffıcient degree of continuity about them to be properly described as settled.

    [35] LK and Director-General, Department of Community Services (2009) 237 CLR 582, quoting Re B (Abduction) [No 2] [1993] 1 FLR 993 at 995.

12. It was submitted for the father that, in this case, the parents acted with settled purpose in relocating the children to Australia, with the evidence supporting such a finding being as follows:

    ·the mother sold household items, including possessions belonging to the children, because the children were moving to Australia;

    ·the mother moved from a three bedroom property to a one bedroom property because the children were not residing with her any longer;

    ·the mother purchased one-way airline tickets for the children, as opposed to return tickets;

    ·[L] drew the inference, based on things said by the mother, that the move to Australia was permanent;

    ·the children were removed from school in New Zealand in April 2013;

    ·the mother indicated on immigration forms that the children were moving permanently to Australia;

    ·the mother provided the father with the children’s immunisation and school records in order for the children to be enrolled in schools in Australia;

    ·the mother left the children with the father in Australia, by agreement; and

    ·the children became involved in their Australian school and church communities, joined sports teams and made friends.

13. On the other hand, the SCA submitted that the children remained habitually resident in New Zealand when they travelled to Australia in April 2013 and denied any settled purpose as between the parents. The SCA drew upon the mother’s evidence to argue that:

    ·the mother sold household items, including possessions belonging to the children because the marriage between herself and the father was at an end and they agreed to dispose of items neither of them wished to keep. Furthermore, the mother stated in evidence that she did not sell all of the children’s belongings, keeping some at the paternal grandmother’s home;

    ·the mother moved from a three bedroom property to a one bedroom property because she could not afford a larger property and wished to save money while the children were away, particularly because the money from the sale of the household items, originally intended for use as a rental bond on a larger property, was used for the airfares for herself, the father and the children;

    ·the mother purchased one-way airline tickets for the children, as opposed to return tickets because she could not afford return airfares and the father had agreed to pay for the return tickets;

    ·[L] drew the inference that the move to Australia was permanent but the mother did not explicitly state this;

    ·the children were removed from school in New Zealand in April 2013 and the mother provided the father with the children’s immunisation and school records in order for the children to be enrolled in schools in Australia because the parents had agreed that the children should attend school while in Australia and the father assured her that they could be easily re-enrolled in New Zealand upon their return;

    ·the mother indicated on immigration forms that the children were moving permanently to Australia because the father told her to do so because this would enable the children to attend school and the father to claim social security benefits in relation to them;

    ·the mother left the children with the father in Australia, by agreement, but never intended for them to remain in Australia for any more than three months.

14. Counsel for the SCA correctly identified that, during cross examination, the father had agreed that the word “temporary” within the Agreement meant “that they can go back to New Zealand”. The father stated, of the Agreement as a whole, that he understood it to mean that “the mother can take the children whenever she wants”. Based on this, the SCA submitted that it is clear that the mother did not agree to the children travelling to Australia to reside there permanently with their father. I agree with that analysis.

15. The SCA quoted LK and Director-General to submit that:

    … when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary.

16. The independent children’s lawyer submitted that, having regard to 9 June 2013 being the date of the alleged wrongful retention, then, given the ambiguous circumstances in which the children originally travelled to Australia, they would at that time have remained habitually resident in New Zealand. I accept the submission. When the parents resolved to bring the children to Australia in April 2013, the children were prepared, and the mother has ordered her life, in such a way that it can reasonably be inferred that the relocation of the children was intended to be permanent. Indeed, my impression is that the mother had agreed that the children could reside in Australia for the foreseeable future. However, two days prior to the children’s departure, the mother changed her mind and conveyed to the father that she was no longer prepared to let the children leave unconditionally. At that point the father reluctantly, but objectively, agreed to proceed in the only way proposed by the mother and removed the children subject to the qualification, specified in the Agreement, that he would return them upon request.

17. I am satisfied that the mother’s intention was that the children could live in Australia unless or until she called for them to be returned to New Zealand. Given that the parents removed the children from New Zealand on the basis that the mother could decide at any time to have them returned, I am not satisfied that the children ceased to be habitually resident in New Zealand as at 4 April 2013. Similarly, I am not persuaded that, as at 9 June 2013, the children had become habitually resident in Australia. This case is emblematic of the tension in practice between parental intention and the child’s experience which our apex court referred to in LK and Director General extracted above [100]. In arriving at my factual finding I did not overlook the underlying reality of the connection which each of the three children have developed to Australia which is, after all, in environment in which I have found, for another purpose, that they have become settled. I was also cognizant of the connection which each child has retained for New Zealand.

18. I am satisfied that the children remained habitually resident in New Zealand as at 9 June 2013 being the date of wrongful retention alleged by the applicant SCA. The other elements (jurisdictional facts) provided for in reg 16(1A) are conceded. Accordingly, I am satisfied that the children were wrongfully retained, within the meaning of the Regulations.

19. Before leaving the issue of habitual residence I should say that, in hindsight, there may have been fertile ground to argue here that the applicant was merely asserting the requesting parent’s rights under the Agreement and that those rights are not the subject of protection under the Regulations or the 1980 Convention. In other words, that it is not an appropriate use of the 1980 Convention to permit children to live and assimilate in another place for an indeterminate period and then require their return to the original jurisdiction under a forum treaty and without a principled consideration of what is in the best interests of the child. However, the case was not argued in that way. In any event, I consider that the case advanced by each party and the independent children’s lawyer has received appropriate and principled attention in the way that I have set it out above and that my finding in relation to habitual residence is sound.

1. Counsel for the father submitted that the mother consented to the children being removed from New Zealand and retained in Australia. It was submitted that the following matters evidence the mother’s intention for the children to relocate to Australia permanently: the mother’s sale of household items, including items belonging to the children; the mother’s move from a three bedroom to a one bedroom property; the mother’s decision to purchase one-way, rather than return, airline tickets to Australia for the children; and the mother’s provision of the children’s immunisation and school records to the father to facilitate their enrolment in school in Australia.

2. I am satisfied that the mother intended that the children would remain in Australia until she requested that they be returned to her pursuant to the Agreement. I am not satisfied that the mother consented to the children remaining permanently in Australia without an entitlement to call for their return to New Zealand.

3. The SCA submitted, and I accept, that, there is no clear and cogent evidence to support a finding that the mother consented to the children moving permanently to Australia. The absence of a formally recorded date for return in the Agreement does not assist the father to construct an affirmative case of consent.

4. The SCA submitted that the Agreement between the parents, which essentially states that the mother can ask to have the children returned to her at any time and the father cannot refuse, is evidence that the mother only intended for the children to be in Australia temporarily and, accordingly, did not consent to the retention. I agree.

5. The independent children’s lawyer submitted that the Court could not find sufficient evidence that the mother consented to the children living permanently in Australia as the evidence in this regard could not be said to be clear and unequivocal. I agree. I am also satisfied that the mother’s completion of the immigration cards for the children as entering Australia permanently was not a repudiation or abandonment of the mother’s entitlement under the Agreement, notwithstanding that the content of the cards was communicated to the father and, on its face, referred to the children residing in Australia permanently.

6. It was submitted for the father that the mother has acquiesced to the children remaining in Australia. To support this submission, the following facts were relied upon: the mother assisted the father in enrolling the children in schools in Australia; the mother provided no objective evidence to support her assertion that she asked for the children to be returned to New Zealand prior to May/June 2014; the father has consistently asserted that the first time the mother sought the return of the children was in May/June 2014; and the mother failed to make an application under the 1980 Convention until in or about July 2014, some 13 months after the children arrived in Australia. Cases cited for support were Re H (Abduction: Habitual Residence: Consent) [2003] 3 FLR 412 and SCA v Sigouras [2007] FamCA 250.

7. In order for the father to make out the exception relating to acquiescence, I would need to be satisfied that the mother had a subjective intention to allow the children to remain here. The subjective nature of the intention requires that due regard be had to the context in which the acts which are alleged to indicate acquiescence on the part of the mother took place. I accept the statement by Kay J in Department of Health and Community Services, State Central Authority & Casse (1995) FLC 92-629 at [43]: [111]

   In my view, there cannot be true acquiescence where the parties are in a state of confusion and emotional turmoil.

   [111] Citing Re A (Abduction: Custody Rights) [1992] 1 All ER 929 (Stewart-Smith LJ).

8. The SCA submitted that the evidence relied upon by the father in order to establish that the mother acquiesced to the children being retained in Australia is neither unambiguous nor cogent and, as such, does not meet the requisite standard of proof. To support this claim, the SCA referred to the mother’s evidence that she requested return of the children on a number of occasions, with the first of these being in June 2013; that she sought legal advice from multiple practitioners about how to secure the return of her children; that the delay in seeking further advice was due to difficulties with her pregnancy which required her to diminish her stress levels; and that she could not provide evidence of the Viber messages she says she sent to the father requesting the return of the children because the messages were lost.

9. For me to be satisfied that the mother had acquiesced, I would need to be satisfied that, subsequent to the Agreement and the children’s arrival in Australia, she had by unequivocal words or actions had and communicated an intention not to insist upon a right to rely on the Agreement and to not seek a summary return under the Regulations. I am not so satisfied.

10. I am not satisfied that the mother subsequently acquiesced to the children remaining in Australia in the clear and unambiguous way the authorities require.

Is there a grave risk that the return of the children to New Zealand would expose them to physical or psychological harm or otherwise place them in an intolerable situation?

1. Reg 16(3)(b) provides that the Court may refuse to return a child if the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

2. In DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401, Gaudron, Gummow and Hayne JJ said of this exception (citations omitted):

   [41] … On its face reg 16(3)(b) presents no difficult question of construction and is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. …

   [42] Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.

   [43] Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.

   [45] That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.

3. Counsel for the father submitted that there is a grave risk, within the meaning of reg 16(3)(b), that returning L to New Zealand would expose him to psychological harm or otherwise place him in an intolerable position due to his anger towards his mother, particularly in relation to his perception that she has disregarded his wishes. It was further submitted that there is a grave risk that returning the children to New Zealand would place them all in an intolerable situation by separating them from their father, who has been their primary carer for over two years. Cases relied upon were State Central Authority and Papastravou [2008] FamCA 1120 and Kilah & Director-General, Department of Community Services [2010] FamCAFC 81, though again how these cases are relevant or assist the Court in this matter was not made clear in argument.

4. Counsel for the SCA submitted that there is insufficient evidence to support the father’s grave risk argument and, further, submitted that if such a risk were found to exist, it could be ameliorated by a condition requiring the parents to allow the children to engage with appropriate counselling prior to, and potentially after, the children’s return to New Zealand.

5. With regard to any submission by the father that the children would be at grave risk of emotional harm due to being separated from him, the SCA submitted, quoting State Central Authority & Sigouras [2007] FamCA 250 at [86], that “there is an established line of authority against refusing to return a child merely because the parent, who wrongfully removed or retained the child out of the country of the child’s habitual residence in the first place, refuses to return”.

6. The SCA submitted that the father could return to New Zealand but chooses not to, and his concerns about being unable to find employment with comparable remuneration in New Zealand are not sufficient to remove the element of choice. I am mindful that the father lived in Melbourne prior to the arrival of the children. Accordingly, the father would be relocating to New Zealand rather than “returning” to New Zealand. Even so, the father’s reliance on there being a grave risk relates to the children effectively leaving his primary care and his household and I accept that is a situation which is within his power to ameliorate or avoid.

7. The independent children’s lawyer submitted that there is insufficient evidence to permit the Court to make a finding that any of the children would be at grave risk of being exposed to physical or psychological harm, or otherwise be placed in an intolerable situation, if they were to return to New Zealand.

8. I accept the submissions of the independent children’s lawyer and SCA. I am not satisfied that the children would be exposed to a grave risk of harm, within the meaning of the Regulations, if they were returned to New Zealand.

Exercise of any discretion about return

1. I have found that the children are settled in their new environment and have concluded that, upon being so satisfied, the Regulations in relation to return applications have no further application to this family. If I am wrong on this point (which I really do not think I am) and there is some further discretionary power to send the children back to New Zealand, I would not do so. They are settled, they are content and the parents should set about making arrangements for the children to be able to spend face to face time with the mother and to become acquainted with their sibling whilst the mother and their sibling live in New Zealand and they live in Australia. I am not pre-judging any parenting case but I suspect that there are not many aspects of this family about which I have not heard evidence with the obvious exception of any social science assessment of the mother’s partner.

2. I am not concerned that the purpose of the 1980 Convention will be defeated by not ordering a return of the children in this case. The 1980 Convention was not intended, and does not, apply to all children who are wrongfully retained or removed and, as I hope the above reasons explain, there is good reason for the children to remain in Australia.

3. I turn now to how I would exercise my discretion in relation to L having found that he objects to returning to New Zealand in the relevant sense. In another reg 16(3)(c)case, De L v Director-General, New South Wales Department of Community Services and Another (1996) 187 CLR 640, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ considered the then reg 16(3)(c) and observed at 661:

   … if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child’s return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the “discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]” enable it to be said that a particular consideration is extraneous [Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J]. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.

4. The factors commonly addressed when determining whether to exercise a discretion under reg 16(3) were set out by Waite J in the United Kingdom case of W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211[112] and were endorsed by the Full Court of this Court in Zafiropoulos & the Secretary of the Department of Human Services State Central Authority (2006) FLC 93-264 (“Zafiropoulos”).[113]

   [112] These factors are: (a) the comparative suitability of the forum to determine the child’s future in the substantive proceedings; (b) the likely outcome (in whichever forum) of the substantive proceedings; (c) the consequences of the acquiescence; (d) the situation which would await the absconding parent and the child if compelled to return; (e) the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and (f) the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.

   [113]

5. Addressing the factors, the SCA submitted that:

   ·New Zealand is a comparatively suitable forum to determine the children’s best interests through substantive proceedings;

   ·the mother was the children’s primary carer prior to the parents’ separation, the mother alleges that the father perpetrated family violence against her in the presence of the children and while [L] in particular has expressed a desire to remain in Australia and is currently not close with his mother, it may be that the rift between them can be repaired through counselling such that it would be in the children’s best interests to reside with their mother;

   ·the mother denies that she ever acquiesced to the children remaining in Australia permanently or even indefinitely;

   ·the children would live with the mother, her new partner and their baby, and the mother has expressed a willingness to engage a therapeutic counsellor to assist the children emotionally upon their return to New Zealand;

   ·[Ms G] expressed the view that if the children had the support of their father and paternal family in their return to New Zealand and their mother’s care, this would go a long way towards assisting them to adjust to their new circumstances. In addition, the mother has expressed a willingness to engage therapeutic assistance to assist the children, particularly [L], with the transition;

   ·objects of the 1980 Convention which would be at risk of frustration in the event that a return order is refused include the objective of discouraging child abduction and retention and making it clear to people who might be tempted to engage in this conduct so as to secure a chosen forum for the resolution of custody disputes that their attempt will ordinarily fail.

6. The father submitted that the facts of this case applied to the Zafiropoulos factors establishes sufficient reasons not to order return, as follows:

   ·The father conceded that New Zealand is an equally suitable forum to decide the best interests of the children in this case.

   ·In light of the children’s strong views that they would prefer to continue to live with the father, their participation in school and integration into the local community, and the risk that [L] would suffer psychological harm if required to live in New Zealand with his mother against his express wishes, the likely outcome of proceedings would be for the children to be allowed to relocate to, or continue to reside with, their father in Australia.

   ·The mother acquiesced to the children living in Australia, to the extent that she brought them here, assisted in enrolling them in schools and did not request their return to New Zealand until 14 months after the children had arrived.

   ·The mother’s behaviour has the potential to create confusion and frustration for the children and to disrupt their settled lifestyle. The father’s evidence was that he would not return to New Zealand due to a concern about his ability to obtain suitable employment with a comparative salary in New Zealand. The children would be required to live with their mother, her new partner and their son [F] (now 15 months old) in a two bedroom residence. It would be the first time the children would be living without their father and his uncle for over two years. While the mother has said that she will arrange for therapeutic assistance for the children, to assist them emotionally in their return to New Zealand, her approach is one of “we will just work it out”.

   ·An order for the children’s return would impact negatively on the children by separating them from their father and uncle. This risk of psychological harm is particularly acute in relation to [L] because of his clear expression of his wish not to return to New Zealand.

   ·All of the children have expressed negative and confused views towards the mother.

   ·The wording of the 1980 Convention and the Regulations reflects the position that there are some cases where there is a delay in making an application for children’s return and the children have settled into their new environment. In these cases, the principles of the 1980 Convention for a “speedy return” are no longer applicable and an order for return harms rather than helps the children. In such cases, it is more appropriate to institute proceedings concerning the best interests of the children in the country where they currently reside.

7. The independent children’s lawyer submitted that:

   ·there is no difference between Australia and New Zealand in terms of the suitability of forum;

   ·there is no evidence as to the likely outcome of proceedings in either country. The best interests of children is the paramount consideration in both jurisdictions and [L’s] view would likely be given significant weight in courts of both countries, in light of his age and level of maturity;

   ·while there is no apparent acquiescence in this case, it would be open to the Court in light of the welfare consideration to look at the same factors that give rise to the settled condition of the children and the likely impact of a change to those circumstances if they were to be returned to New Zealand;

   ·there is no indication that there would be any adverse circumstances in New Zealand in terms of legal proceedings in relation to the children’s retention in Australia. However, the father has indicated that he would not return to New Zealand with the children, and this will have significant implications for the children; and

   ·there is no applicable risk of frustration to the underlying philosophy of the 1980 Convention if return is not ordered. The mother’s failure to initiate appropriate action in a timely manner where she had the opportunity to do so and was not constrained from doing so means the time for a speedy resolution and return is long past. The children have settled into their new environment and their welfare is, thus, the significant consideration to be taken into account by the Court.

1. New Zealand has a system very similar to our own. There is no real distinction between the jurisdictions insofar as the capacity of each forum to determine parenting proceedings.

2. I have every confidence in the administration of justice in New Zealand. Through the International Hague Network of Judges, I have had fairly extensive experience of judges in our two countries working together on cases to lessen the adverse impact of return proceedings on children and their parents.

3. As mentioned above, it is not necessary for me to consider the impact on the children of being separated from one another in the event that one or more are permitted to remain in Australia but one or two of them are required to be returned to New Zealand. Ms G reported that neither parent was supportive of an outcome that would see the children separated from one another and she considered it to be to their credit that the parents were prioritising the siblings’ relationships with one another over their own proposals. While the mother changed her mind during the course of the proceedings, she ultimately changed it back and the applicant SCA does not seek that the children be separated in the event that I refuse to return L to New Zealand.

4. I have heard, and accepted, the thorough and reasoned evidence of the family consultant, Ms G. In the exercise of any discretion which would have arisen by virtue of my finding that the children are settled in their new environment and L’s objections to return, I am firmly of the view that in the particular circumstances of this case, any removal of the children from the father’s care should be ordered only after an examination of the merits of each parents’ parenting case and on the basis that the interests of the children is the paramount consideration. 

A note on mediation

1. It is important for me to say something about what I consider to be the regrettable absence of mediation in this case.

2. On various occasions after I became seized of the matter the parents were offered specialised mediation through Victoria Legal Aid. It is specialised mediation because it is customised for Hague return matters such as this, is convened at short notice by two mediators who have received training in international child abduction matters and who are in a position to offer the parties up to three sessions over as many or more days.

3. Specialised Hague mediation is free of cost to the parents, save for retaining their own lawyers to attend. It was made very plain to the parties, and I am confident would have been communicated by the applicant SCA to the requesting parent or those who advise her, that the purpose of the mediation was to prepare for outcomes rather than to try to resolve all matters about the children.

4. The father and the independent children’s lawyer wanted to mediate but the mother (the requesting parent) refused to do so.

5. It has been said, most frequently between Australia and New Zealand, that mediation is not appropriate because this is merely a dispute about forum, about where the parenting dispute should be heard rather than the substance of the parenting dispute. It is precisely because this is only a dispute pursuant to a forum selection treaty that mediation is a particularly wise course. Given the issue is whether parenting proceedings about children ought to take place in the country of habitual residence or here, it would have been of immeasurable benefit to the children (who have already experienced the disruption of one international move and complete disconnect between parents) for the parents to have prepared for both possible outcomes. That is, the outcome he or she seeks and the outcome he or she does not seek.

6. Return proceedings under the Regulations do not determine substantive parenting rights. Unlike domestic family law proceedings about children, both parents are not immediately on hand to implement parenting arrangements defined by the court. These forum proceedings result, at least in the immediate aftermath of the decision, in the children falling between one parent who has been victorious and the other who feels they have been vanquished. Having regard to the modern paradigm of Hague return cases, the vanquished party is often going to be the primary carer of the children so, it stands to reason, that the loss and apprehension about what will happen next which is felt by the unsuccessful party may impact upon the children quite directly.

7. The plurality of Gummow, Heydon and Crennan JJ of the High Court in the decision of MW v Director-General, Department of Community Services [2008] HCA 12, discussed the significance of the speedy return remedy in the context of prompt, but not hasty, dispositions. Their Honours’ observed at [46] that:

   … an application for a return order … is a special type of proceeding. It is apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country.

8. The determination of a Hague return application is likely to be far more traumatic for one or both parent and, through them, the children, than the substantive parenting proceedings will ever be.

9. Litigants, and most particularly model litigants such as the Central Authorities, should not lose sight of the impact on children, in real terms, of the immediate aftermath of an order being made for repatriation to the state of habitual residence or the failure of such an application. The conclusion of each Hague return proceeding coincides with the opportunity for the parents to embark on proceedings for parenting orders in the most appropriate contracting state.

10. It is in the interests of the children who are the subject of international parental child abductions, whose welfare the 1980 Convention was created to protect, that parents should be encouraged to prepare for outcomes and not only the outcome that he or she seeks but also the outcome which he or so does not want. A taking parent should be encouraged to consider very carefully what he or she will do if the children are required to be returned to the home state. Likewise, the requesting parent should be encouraged to take the opportunity to consider very carefully what his or her next step will be if the children are not returned to the country in which the requesting parent lives. Children who are subject to cross border parenting disputes and unilateral removal or retention, are already vulnerable. They deserve better than to have to contend with a parent who is shell shocked by an adverse determination.

11. In this case, which is similar to many other cases, it was clear that:

    (a)        if the application of the SCA fails and the children are permitted to remain in Australia, the requesting parent (mother) would seek some meaningful time (access) with the children in New Zealand and, therefore, require complementary parenting orders to be made in both jurisdictions to ensure that the time takes place;

    (b)        if the application of the SCA succeeds and the children are returned to New Zealand, the respondent father would seek some meaningful time (access) with the children in Australia as well as New Zealand and, therefore, require complementary parenting orders  to be made in both jurisdictions to ensure that the time takes place;

    (c)        parenting orders would have to make detailed provision for responsibility for the timely purchase and payment of air travel liability for which may well impact on the capacity of the non-resident parent to pay child support;

    (d)        either way there would need to be orders for communication by electronic means and the children spending face to face time with the non-resident parent; and

    (e)        regardless of the outcome, the family members would benefit from some counselling or social science support.

12. These matters could have been discussed between the parents in a specialised mediation setting such as is provided free of charge by VLA, without prejudice to, or any compromise of, the primary position of the applicant SCA or the respondent father. If that had occurred, the unsuccessful party and, through that party, the children would have had the comfort and advantage of referring to whatever position had been discussed and negotiated in the eventuality of that parent being unsuccessful.

13. The applicant and the Commonwealth Central Authority did not oppose mediation. Indeed, my consistent experience is that they, as applicant, do not oppose mediation between the parents which is facilitated by an independent children’s lawyer, providing that the mediation in no way delays the final disposition of the matter. The father agreed to mediate. Ironically, it was the requesting parent who refused.

14. Clearly, the mother is not accustomed to litigation. Earlier in these reasons, I have commented on her naive presentation, her lack of insight, her limited emotional intelligence and apparent inability to empathise with the children. Those qualities obviously impact upon the mother’s ability to appreciate the value of mediation without assistance and support. However, at all times her application was in the hands of a model litigant in New Zealand and at least one model litigant in Australia. At all times, it was apparent that the applicant’s case faced the additional hurdle associated with the children having become settled in Australia over the last two years. It was never going to be an easy case for the applicant SCA to win. However, I am puzzled as to why one of the two Central Authorities who had stewardship of the mother’s position were unable to enlighten her to the advantage of preparing for outcomes including the unfortunate one in which she now finds herself.

15. We contracting states and our Central Authorities are well versed in recognising the harmful effects of international parental child abduction and seeking the speedy and summary return of children to their places of habitual residence. Mediation of the kind which was available to this family goes a long way to remedying the negative aspects of whatever decision is made by offering children the benefit of their parents having had facilitated discussions and given serious consideration to what parenting arrangements should be for whatever result comes to pass. My concern is that, without the assistance of a mediation forum to focus on outcomes, vulnerable children will, inevitably, be left in limbo until the parent whose case did not succeed does something or takes proceedings in the jurisdiction in which the children are present.

16. When I refer to “parenting arrangements” in the context of mediation, I am not referring to only final arrangements. Very many cases require preparation for short term and immediate needs of the children immediately after determination of Hague return application to operate until such time as the appropriate court becomes seized of the matter. These considerations commonly include:

    (i)payment of airfares to return the children to the home state;

    (ii)who will assume care of the children immediately after they are returned to the home state and what face to face time and communication the left behind parent will have with the children;

    (iii)where the taking parent will reside on return relevant to the residence of the taking parent and the geographical jurisdictions of courts of competent jurisdiction;

    (iv)will there be a moratorium on court hearings for, say, two weeks after the children are returned during which the taking parent can access legal advice;

    (v)what immediate financial support will the taking parent be able to access through the state and what would the left behind parent provide; and

    (vi)if there is no return when and where the children will see the left behind parent and the nature of the communication the children will have with him or her in the meantime.

17. I ask the Central Authorities in this matter to reflect upon how much better this outcome could be for the children if they could be told, with some certainty about when and where they will next spend time with the mother and meet their infant sibling (for the first time) contemporaneously with being informed about the outcome of this case. However, as indicated, I would be receptive to expediting any parenting proceedings as and when they are instituted by the parties. Probably the best course is for whichever parent proposes to initiate proceedings to contact the former independent children’s lawyer, and ask her to liaise with the Court about a preferential listing. It is highly likely that the independent children’s lawyer would be re-appointed.

18. The family consultant indicated her preparedness to explain the outcome of this proceeding to the children. I will make an order to that effect.

Conclusion

1. For all of the above reasons, the application will be dismissed.

I certify that the preceding three hundred and thirteen (313) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.

Associate: 

Date:  15 September 2015

Zafiropoulos & the Secretary of the Department of Human Services State Central Authority (2006) FLC
93-264 at [33], citing W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211; TB v JB (formerly JH) [2000] EWCA Civ 337; H v H (Abduction: Acquiescence) [1996] 2 FLR 570.