State Central Authority & Khadem (No 2)
[2014] FamCA 315
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & KHADEM (NO. 2) | [2014] FamCA 315 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Whether the mother consented to the father’s removal of the four children from New Zealand to Australia – consent must be real and unequivocal consent – where the father did not tell the mother that he was taking the children to Australia – where it was found the mother was not aware of the father’s intention to take the children to Australia – where consent not established – the exercise of discretion under regulation 16(3) not enlivened – order made for the return of the children to New Zealand. |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 Director-General, Department of Community Services & Bindle [2009] FamCA 122 Director-General, NSW Department of Community Services & JLM (2001) FLC 93-090 Department of Human Services, Community Services & Parry [2010] FamCA 689 DJLv Central Authority (2000) 201 CLR 226 Wenceslas v Director General, Department of Community Services (2007) FLC 93-321 |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Mr Khadem |
| FILE NUMBER: | MLC | 1480 | of | 2014 |
| DATE DELIVERED: | 16 May 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 28 April and 5 May 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Wilson |
| SOLICITOR FOR THE APPLICANT: | Department of Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Ms Carter |
| SOLICITOR FOR THE RESPONDENT: | Victoria Legal Aid |
ORDERS*
IT IS ORDERED THAT
The children W born … 2002, T born … 2005, S born … 2006 and L born … 2008 be returned to New Zealand and for the purposes of giving effect to this order:
a)The said children leave the Commonwealth of Australia on a date to be agreed by the father and the mother and in any event to be not before 27 May 2014 and not later than 6 June 2014 (“the relevant dates”);
b)The father be permitted to accompany the children on their return to New Zealand subject to him purchasing an e-ticket for the flight he proposes to take with the children to New Zealand and providing the State Central Authority and the mother a copy of the e-ticket for that flight no later than 4.00 pm on 23 May 2014, and thereafter the mother purchase one way tickets for the children on that flight and provide a copy of the e-tickets to the State Central Authority and the father not less than 48 hours prior to the intended date of departure;
c)In the event that the father does not provide the mother with an e-ticket pursuant to sub-paragraph (b) the mother purchase one way tickets for the children and herself or her nominee/s for travel to New Zealand between the relevant dates and not less than 48 hours prior to the intended date of departure provide the State Central Authority and the father with a copy of the e-tickets;
d)That upon receipt of the e-tickets referred to in sub-paragraphs (b) or (c) the State Central Authority provide a copy of the e-tickets and a sealed copy of these orders to the Marshal of the Family Court of Australia and the Australian Federal Police;
e)Pending the children’s return to New Zealand the father be restrained and an injunction issue restraining the father or any other person acting on his behalf from removing or attempting to remove the children from the Commonwealth of Australia;
f)Pending the children’s return to New Zealand the father be restrained and an injunction issue restraining the father from changing the children’s current place of residence from B Street, Town C in the State of Victoria;
g)Pending the children’s return to New Zealand the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the children W born … 2002, T born … 2005, S born … 2006 and L born … 2008 on the All Ports Watch Alert System at all international points of departure from Australia;
h)Upon receipt of the e-tickets referred to in sub-paragraphs (b) or (c) the Australian Federal Police remove the names of the children W born … 2002, T born … 2005, S born … 2006 and L born … 2008 from the All Ports Watch Alert System to take effect from 12.00 am on the date of travel for which the e-tickets have been issued;
i)The Marshal of the Family Court of Australia and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders.
There be liberty to apply in relation to the implementation of this order.
The Form 2 application filed 24 February 2014 be otherwise dismissed.
*These orders have been amended where underlined to accord with the orders as pronounced by Justice Macmillan on 16 May 2014.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Khadem (No. 2) 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 1480 of 2014
| STATE CENTRAL AUTHORITY |
Applicant
And
| Mr Khadem |
Respondent
REASONS FOR JUDGMENT
On 19 December 2013 the children W (born in 2002), T (born in 2005), S (born in 2006) and L (born in 2008) left New Zealand and travelled to Australia with their father.
On 24 February 2014 the Secretary to the Department of Human Services representing the State Central Authority filed a Form 2 application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) seeking inter alia an order for the return of the children to New Zealand.
In this case it is Ms A, the mother of the children, who resides in New Zealand who made the “request” as defined in regulation 2 of the Regulations. The respondent to the application is Mr Khadem, the children’s father. It is submitted on behalf of the State Central Authority that the children have been wrongfully removed from New Zealand on the following basis:
a)the children are under the age of 16; and
b)the application was made within one year of the children’s removal from New Zealand; and
c)the children were habitually resident in New Zealand prior to their removal; and
d)the mother, as requesting parent, has rights of custody in relation to the children and was exercising the rights of custody prior to their removal from New Zealand; and
e)the removal of the children from New Zealand was in breach of the mother’s rights of custody.
The father is the respondent to these proceedings. Although the father concedes that the children were wrongfully removed from New Zealand it is his case that pursuant to regulation 16(3)(a)(ii) the Court should exercise its discretion in favour of the father and not make an order for the children’s return to New Zealand because the mother consented to the children moving to Australia with the father.
The State Central Authority relied upon the affidavits of the mother sworn 17 January 2014, and the affidavit of Ms D sworn 16 April 2014 annexing the mother’s further affidavit sworn 16 April 2014, and the affidavit of Mr E as to the applicable law in New Zealand sworn 20 January 2014. The father relied upon his affidavit sworn 1 April 2014.
There were substantial parts of both the affidavits of the mother and the father which were not relevant to the issues in dispute in these proceedings and which were subsequently struck out by agreement between counsel for the State Central Authority and the father.
Background
The father was born in Western Samoa and is 47 years of age. He is a New Zealand citizen.
The mother was born in New Zealand and is 32 years of age. She is likewise a New Zealand citizen.
All four children were born in New Zealand.
The father and the mother met in 2000 and married in City F in 2002. They moved to City G in 2003. The father and mother separated in 2009 due to what the mother says was ongoing domestic violence. The father denies the mother’s allegations of domestic violence and it is his case that the parties separated after the mother formed a new relationship.
The mother deposes that following separation she and the father have shared the care of the four children and that on 26 November 2010 they signed an agreement witnessed by a Justice of the Peace that the mother would care for the children three and a half days a week from Monday to Thursday and that the father would care for them from Thursday afternoon until Sunday. Although the father says that he does not recall signing this agreement he does acknowledge that the signature on that document is his. The father and the mother both agree however that they did not abide by that agreement. The mother says that because she was working full-time she would see the children most weekends and half of the school holidays, whereas it was the father’s evidence that the children had not spent any substantial time with the mother since separation.
Legal Principles
The Regulations provide the legislative basis in Australia for the Convention on the Civil Aspects of International Child Abduction referred to for convenience as the Hague Convention. The objects of the Convention are to:
(a)secure the prompt return of children wrongfully removed or retained in any Contracting State; and
(b)to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
It is those objectives which are embodied in and given effect to by the Regulations and which give rise to the clear distinction between the return of a child to his or her country of habitual residence and orders which place the child in the care of one or other of his or her parents: DJLv Central Authority (2000) 201 CLR 226; Director-General, NSW Department of Community Services & JLM (2001) FLC 93-090.
Regulation 16(1) provides that the Court must order the return of a child if:
(a) an application is made for the return of that child: and
(b)that application is filed within one year after the child’s removal or retention: and
(c)the State Central Authority satisfies the court that the child’s removal or retention was wrongful as defined in subregulation (1A).
Regulation 16(1A) provides as follows:
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.
The State Central Authority bears the burden of proving that the removal is wrongful as defined in subregulation (1A) and having established the necessary elements on the balance of probabilities the Court must order the child’s return save and except that regulation 16(3) provides that the Court may refuse to order the return of the child if the person opposing that 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.
It is inherent in the nature and purpose of the Hague Convention and the Regulations which are intended to achieve the speedy return of children wrongfully removed from their habitual residence that the proceedings will be dealt with expeditiously. That is clear from the Regulations themselves which require the Court, so far as is practicable, to give an application such priority as will ensure that it is dealt with as quickly as a proper consideration of each matter allows (regulation 15(2)). Regulation 15(4) further provides that in the event that an application is not determined within a period of 42 days after that application is made, the responsible Central Authority may ask the Registrar of the court to state in writing the reasons that the application has not been determined within the specified period.
Notwithstanding that the requirement that the application should be dealt with expeditiously necessitates the adoption of a summary procedure, the High Court in De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 warned against the need for expedition resulting in an insufficient hearing of the issues in dispute. Some cases will lend themselves to a summary hearing more than others and it is often a question of the issues in dispute in each case that will determine the appropriateness or otherwise of even restricted examination and cross-examination upon affidavits.
In this case there is a factual dispute between the father and the mother in relation to the mother’s alleged consent. Counsel for the father sought leave to adduce oral evidence by way of reply to the mother’s affidavit sworn 16 April 2014 and I granted leave for her to do so. I also granted leave to counsel for the State Central Authority to cross-examine the father and counsel for the father to cross-examine the mother in relation to the mother’s alleged consent. The mother gave her evidence by telephone from New Zealand.
The Issues in Dispute
In their respective affidavits the father and the mother gave conflicting accounts not only in relation to the history of their relationship and the arrangements made for the children’s care following their separation but also in relation to the events leading up to the children’s removal from New Zealand.
The father deposes as follows:
4.I had four discussions with the Mother between August and October 2013 about the children and I moving to Australia. She did not try and stop us from moving and supported and encouraged me to take the children to Australia. She first suggested that I move to Australia in December 2009 when we spoke to (sic) face to face and she told me “it would be good for you to go to Australia with the children.” When she called my mobile between August and October 2013 she would ask me “when are you moving to Australia” and I would explain that I cannot afford the airline tickets.
…
18.I discussed the children and I moving to Australia over the telephone with the Mother on four occasions between August 2013 and October 2013. Each time the Mother contacted me and suggested that the children and I move to Australia so they can have a better life. She said that if we moved first and set up our own house, she would come and visit.
Although the mother conceded in cross-examination that in or about 2006, prior to separation, she and the father discussed the possibility of moving from New Zealand to Australia together as a family, she denied that she had ever suggested that the father should move to Australia with the children. The mother’s evidence was that she would speak to the father about once a month and had spoken to him between August and October 2013 but that there had been no discussion in relation to the father moving to Australia with the children. As the mother said, she “never even knew it was being proposed as [the father] never mentioned it to me at all.”
The father also deposes that on 12 December 2013 he spoke to his friends Mr and Ms H, with whom he has been staying in Australia, and that they offered to purchase airline tickets for he and the children to travel to Australia. The father further deposes that on the afternoon of 16 December 2013 Mr and Ms H telephoned him and told him that they had booked tickets with Qantas for he and the children departing New Zealand on 19 December 2013.
The mother says that in November 2013 she and the father agreed that the children would spend Christmas Day with the father and spend time with her over the New Year period and that she would drop presents off for the children prior to Christmas. The mother says she spoke to the father on 16 December 2013 and reminded him of the arrangement they had made for the children to spend a week with her over the New Year period and asked the father when he would be home during that week so that she could deliver the children’s Christmas presents. The mother deposes that she suggested Wednesday 18 December 2013 but that the father told her not to come until 20 December 2013 to which she agreed. The father by way of reply to the mother’s first affidavit deposes in his affidavit filed 2 April 2014 as follows:
22.On the 16 December 2013 at approximately 10.00 am I told the Mother she could visit the children to give them some Christmas presents. She had not given presents for the children’s birthdays or Christmas since we had separated, so I was surprised she was offering to do this. When I found out that afternoon that we were leaving on 19 December 2013, I thought that if the Mother came to give presents at all, then she could see our sons before we left. But I did not think that she would come with presents as she has never done this before.
…
41.I spoke to the Mother on or around 16 December 2013 to make arrangements for her to bring the Children’s presents on 18 December 2013, however the mother never attended.
The father denied asking the mother to come on 20 December 2013 as deposed to by the mother. He also denied that there had been any other agreement made with respect to the children spending time with the mother over the New Year period.
In answer to the mother’s evidence that when she spoke to the father on 16 December 2013 he made no mention of the fact that he was proposing to travel to Australia with the children on 19 December 2013 the father deposes that he had been unable to inform the mother because at the time of their telephone conversation he was unaware of the arrangements made by Mr and Ms H. The father did not provide any explanation as to why he did not tell the mother of the offer made by Mr and Ms H to purchase tickets for he and the children even if he did not, at the time of that conversation, have an exact date for the proposed travel.
There is no dispute that, having been advised by Mr and Ms H that they had purchased tickets for he and the children to travel to Australia, the father made no attempt to contact the mother and advise her of these arrangements.
In those circumstances the father’s case that the mother consented to his move to Australia with the children rests on his evidence with respect to the four telephone conversations he allegedly had with the mother between August and October 2013. It was submitted by counsel for the father that it was open to me on the evidence to find on the basis of those telephone calls that the mother had consented to the father moving to Australia to live with the children and that the fact that the father had not provided the mother with specific details of the proposed travel and move to Australia once the arrangements had been made would not preclude the Court from making that finding.
Although it is not necessary that there be an express statement of consent and that consent may be inferred from conduct it is also well settled that “consent must be real and unequivocal and can only be made out by clear and cogent evidence”: Wenceslas v Director General, Department of Community Services (2007) FLC 93-321.
The father’s evidence in this case was vague and lacked specificity both as to the timing of the alleged conversations and the content of those conversations. His demeanour when answering questions, even allowing for the fact that he required the assistance of an interpreter, was unconvincing. The mother on the other hand was a more impressive witness. Her evidence was more detailed and specific, for example, when asked about her telephone conversation with the father on 4 March 2014 she was able to recall that there had in fact been two telephone calls on that date because the father had run out of credit on his phone.
Of even greater significance, in my view, was what I consider to be the inherent inconsistencies in the father’s evidence and his inability to provide any credible explanation for these inconsistencies when offered the opportunity to do so.
Counsel for the father referred me to the decision of Watt J in Director-General, Department of Community Services & Bindle [2009] FamCA 122 and submitted that the Court could find on the basis of the alleged telephone conversations that the mother had consented to the children’s removal from New Zealand notwithstanding that the father had not advised her of the date or the arrangements made for their travel to Australia. Although there may be cases where the failure to provide specific details of the proposed relocation to another country might not vitiate consent to that relocation, in this case the father’s failure to tell the mother of his intended travel to Australia with the children, in circumstances where he says she was encouraging him to move to Australia, only highlights the inherent inconsistencies in his evidence.
Why, if as the father says, he knew that the mother would support the proposed move, did he not tell her on 16 December 2013 that Mr and Ms H had offered to purchase tickets for he and the children or contact her once those tickets had been purchased and he knew their departure date. And if, as he said, it was the mother who suggested that he move to Australia and that she would come and visit when he had set up his own home, why did he not contact her and let her know that he and the children were in Australia. The father’s own evidence was that he did not know how the “[m]other found out we were in Australia”. The father’s explanation that he had not told the mother where he and the children were living because he did not have a permanent address does not in my view satisfactorily explain why he would not have told the mother that he and the children were in Australia when according to him it had been the mother’s idea that he relocate to Australia.
The father’s evidence that he told the mother to deliver the children’s presents on 18 December 2013 but that he had not, because of her history, expected her to do so, does not sit comfortably with his other evidence or provide an explanation for the fact that he had not advised the mother either of Mr and Ms H’s offer to purchase the tickets or of the date of their departure upon purchase of those tickets. It is his evidence that when he spoke to the mother on 16 December 2013 he already knew that Mr and Ms H intended to purchase tickets for he and the children to travel to Australia albeit no departure date was confirmed. If, as he said the mother had not only consented to the children moving to Australia but had actually proposed that move, there would have been no reason for him not to have told the mother of Mr and Ms H’s offer to purchase the tickets or following the purchase of those tickets to advise her of the intended date of departure. In fact on this particular occasion it would have been important to advise the mother to ensure that she made the effort to see and deliver presents to the children because they were relocating to Australia.
It was put to the mother in cross-examination that the copies of her Facebook entries demonstrated that she and the father had previously discussed him taking the children to Australia and that she had told the father that he could go with the children. Counsel for the father drew attention to the entries in which the mother said as follows:
..Omg d u (sic) know if … shifted to Aussie or if they have shifted sum wea (sic) else..
..Hi dear no haven’t found out yet….christmas (sic) sucks for me though...but I guess I had it cumin (sic)…
Finally, a person identified as Ms J posted the following:
So silly, did he take off 4 (sic) any reason? Talk abt (sic) taking a big risk. nd (sic)why Melbourne? Weren’t they meant to come to Sydney? That’s no good.
As previously noted, the mother did concede that prior to separation she and the father had discussed the possibility of moving as a family to Sydney. However the mother did not resile from her evidence and none of the Facebook messages which were annexed to her affidavit would lead me to conclude that she had been told about and had consented to the father relocating with the children to Australia. To the contrary, those messages annexed to her affidavit support her version that she had no knowledge of the father’s proposed move to Australia and was trying to locate the whereabouts of her children.
In all of the circumstances where there is a conflict between the evidence of the father and the mother I prefer the mother’s evidence. This includes the mother’s evidence in relation to the telephone conversations upon which the father relies in support of his case that the mother consented to the children’s removal. In relation to those conversations, the mother deposes that not only did she not consent to the father taking the children to Australia but that there was no mention by him during those conversations that he proposed such a move. I respectfully agree with the view expressed by Ryan J in Department of Human Services, Community Services & Parry [2010] FamCA 689 at paragraph 98 “that a parent cannot be said to have consented or acquiesced in a child’s removal unless the parent was aware of it.” I am satisfied that the mother was not aware of the father’s intention to remove the children from New Zealand and on that basis could not and did not consent to their removal. In those circumstances, the discretion not to order the children’s return to New Zealand is not enlivened.
Counsel for the State Central Authority submitted that the Court should in those circumstances order the return of the children to New Zealand within 14 days or at most 21 days. Counsel submitted that she had instructions that the mother would meet the cost of the children’s airfares but that as the mother was in the latter stages of pregnancy, rather than accompany the children herself, she would make arrangements for one or both of her parents, who now live in Australia, to accompany the children on their return to New Zealand.
It was submitted on behalf of the father that he should accompany the children on their return to New Zealand and that the mother should be ordered to pay for his flight as well as those of the children or that in the alternative if he was required to pay for his own flight he would need a month in which to raise the funds to meet that cost.
I agree as submitted by counsel for the State Central Authority that the mother should not be required to meet the cost of the father’s flight to New Zealand. Having regard to the fact that it is now almost five months since the children left New Zealand and in circumstances where the mother has proposed what appear to be appropriate arrangements for the children to be accompanied on their return to New Zealand by a family member I propose to allow 21 days for the children’s return to New Zealand. I do propose to give the father the opportunity to accompany the children however the children will in any event be required to leave Australia not more than 21 days from the date of my orders.
I have in reaching my decision taken into account the submissions made by counsel for the father as to the time he requires to raise the necessary funds to purchase his ticket and the likely cost to the mother of purchasing tickets at the last minute in order to comply with my orders if the father is unable to accompany the children. In those circumstances, I propose to allow the father seven days from the date of my orders in which to purchase his ticket and provide proof of same to the mother and the State Central Authority and in the event that he does not do so the mother will be at liberty to purchase the tickets for the children and the person or persons she nominates to accompany them to New Zealand.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 May 2014.
Associate:
Date: 16 May 2014
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