State Central Authority & Lore
[2007] FamCA 618
•22 June 2007
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & LORE | [2007] FamCA 618 |
| FAMILY LAW - CHILD ABDUCTION – Hague Convention – Finding that child’s place of habitual residence was New Zealand at the time of the alleged wrongful retention in Australia – Request made pursuant to Regulation 17(2) for the State Central Authority to arrange for the New Zealand Central Authority to seek a declaration from Courts of competent jurisdiction in New Zealand that the retention of the child by the respondent father was wrongful within the meaning of Article 3 of the Convention – Matter adjourned sine die pending outcome of New Zealand proceedings. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) Care of Children Act 2004 (New Zealand) Family Courts Act 1980 (NZ) District Courts Act 1947 (NZ) |
Re: H & Ors (1996) 1 All ER 1 at 16
Re F (A Minor) (Child Abduction) [1992] 1 FLR
Panayotides & Panayotides (1997) FLC 92-733
DW and Director General Department of Child Safety [2006] FamCA 93
Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993
Department of Health and Community Services & Casse (1995) FLC 92-629
Wenceslas & Director-General, Department of Community Services [2007] FamCA 398
J & Director-General Department of Community Services [2003] FamCA 929
Re V-B (Minors) [1999] EWCA Civ 1013
| APPLICANT: | State Central Authority |
| RESPONDENT: | Mr Lore |
| FILE NUMBER: | MLC | 3483 | of | 2007 |
| DATE DELIVERED: | 22 June 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 15 May, 15 June & 22 June 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Treyvaud |
| SOLICITOR FOR THE APPLICANT: | Victorian Government Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Wraith (15 May & 15 June 2007) Ms Brooks (22 June 2007) |
| SOLICITOR FOR THE RESPONDENT: | Victoria Legal Aid |
Orders
That pursuant to regulation 17(2) of the Family Law (Child Abduction Convention) Regulations 1986 IT IS REQUESTED that the applicant State Central Authority arrange for the requesting Central Authority in New Zealand to obtain an Order of a Court of competent jurisdiction in New Zealand declaring that the retention by the respondent father of the child M born … June 1998 in Australia on or about 9 February 2007 was wrongful in the meaning of Article 3 of The Hague Convention on the Civil Aspects on the International Child Abduction.
That the further hearing of this matter be adjourned to a date to be fixed before me following the conclusion of the Regulation 17(2) proceedings in New Zealand.
AND IT IS NOTED BY THE COURT that the applicant and the respondent each supported a continuation of the liaison communications between Australia and New Zealand being directed to obtaining the results of section 17(2) proceedings as soon as practicable.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as State Central Authority & Lore.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3483 of 2007
| State Central Authority |
Applicant
And
| Mr Lore |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the State Central Authority filed on 28 March 2007 seeking the return of the young boy M born … June 1998 to New Zealand pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The Regulations are made under s 111B of the Family Law Act 1975 and give effect to Australia’s obligations under the Hague Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October, 1980.
It is conceded by the respondent that both Australia and New Zealand are signatories to the Convention on the Civil Aspects of International Child Abduction.
The applicant State Central Authority alleges that the respondent father wrongfully retained M in Australia on or about 9 February 2007 and did so in breach of the requesting parent's rights of custody. It seeks that the child be returned to New Zealand forthwith, as is required by the Regulations in the event that the retention is found by this Court to be wrongful and none of the exceptions to mandatory return apply.
Relevantly, reg 16 of the Regulations provides:
16(1) If:
(a) an application is made to a court under subregulation 14 (1) [as is the present application] for an order for the return of a child who has been removed to, or retained in, Australia; and
(b) the application is made within one year of 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.
16(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.
The respondent father opposes the return on the basis that, as at 9 February 2007, M was not habitually resident in New Zealand and, if he was, that the retention was not wrongful because it was not in breach of the requesting parent’s rights of custody. Those are the only two issues which require determination. The respondent father does not assert that any of the exceptions to mandatory return apply here.
The requesting parent is Ms C who is the mother of M. She resides in New Zealand.
These proceedings were first before me in the duty list on 15 May 2007 but adjourned part-heard to 15 June 2007 for the belated gathering of evidence, including evidence in relation to the basis and effect of parenting orders which were made in New Zealand on 1 September 2005. Subsequently, my chambers were notified that the evidence could not be obtained within the time available. With the consent of the parties and by reliance on the judicial liaison arrangements between Australia and New Zealand the court was fortunate to be able to obtain most of the relevant documents within a day of our request. This enabled copies of the documents to be made and distributed to all parties well in advance of the resumption of the hearing. We reconvened today when I invited submissions in relation to a request being made to the New Zealand Courts to declare that the retention of M was wrongful.
The first issue for me is whether M was habitually resident in New Zealand immediately prior to the alleged wrongful retention of him by the respondent father on or about 9 February 2007. The Regulations cannot be invoked to require the immediate return of M to New Zealand unless the Court is satisfied that M was habitually resident in New Zealand immediately prior to the alleged wrongful retention.
If I find that M was habitually resident in New Zealand at the relevant time, the remaining issue is whether the requesting parent’s rights of custody were breached when the respondent father refused to return M to New Zealand. The respondent father concedes that the requesting parent has rights of custody but contends that the effect of an order made in New Zealand on 1 September 2005 (which I will discuss in detail later) was to permit him to retain M in Australia until he is 16 years old and, therefore, cannot be wrongful within the meaning of reg 16(1A) of the Regulations.
Onus and standard of proof
The applicant State Central Authority bears the onus of proving both issues to the standard of balance of probabilities.
In Re: H & Ors [1], a case involving a wardship application, Lord Nicholls discussed the relevant standard of proof to be applied in non-criminal proceedings, such as these proceedings. His Lordship stated:-
"[145]. […].The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. . . . Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established".
[1] (1996) 1 All ER 1 at 16.
That is how I approach the evidence in the present case.
Evidence
This was a case run on the papers without oral evidence and with no cross examination. No one sought that it be run otherwise.
The documents that the applicant State Central Authority relies on are the Form 2 application filed 28 March 2007, to which there is attached various documents including;
a)Affidavit of the requesting parent sworn 22 February 2007;
b)Affidavit of Natalie Claire Dufty, solicitor for the requesting parent, sworn 23 February 2007;
c)The affidavit of Leang Thai, solicitor for the applicant State Central Authority, sworn 10 May 2007 to which is annexed various documents including;
i)Affidavit of the mother sworn 8 May 2007;
ii)A hand written statement by Mr C, the father of the requesting parent;
iii)Submission prepared by Natalie Dufty, solicitor for the requesting parent accommodated 8 May 2007;
d)Affidavit of Mary-Ann McCarty, previous solicitor for the requesting parent, sworn 29 May 2007.
The respondent father relied on the following documents:-
a)Form 2A filed 26 April 2007;
b)Affidavit of the respondent father sworn 24 April 2007;
c)Affidavit of Ms W, partner of the respondent father, sworn 24 April 2007;
d)Affidavit of Asha Sarita Prasad, solicitor for the respondent father, to which is annexed the opinion evidence of Andrea Maree Manuel, barrister.
Each party relied on a number of exhibits.
The documents obtained through judicial liaison were copied and bound and marked Exhibit “SCA5”. The only deletions from the documents as received from New Zealand were the precise contact details of the judicial officers.
Neither party objected to the admission of any evidence relied upon by the other.
As with many cases of this nature, the evidence is not comprehensive. Gaps which are routinely filled in domestic proceedings by way of evidence in chief and cross examination appear as gaping holes in cases which proceed without any oral evidence. This predicament was considered by Butler Sloss LJ (with whom the other members of the Court of Appeal agreed) in Re F[2], at page 548, and gave rise to the following observations:-
“… the admission of oral evidence in Convention cases should be allowed sparingly, [….]. If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.
[2] [1992] 1 FLR
With respect, I adopt those observations as applicable to this case. I have regard to the evidence which is before the court. I have regard to the lack of evidence in some respects, inherent probabilities and inconsistencies. I have been assisted by the submissions of counsel for the respondent father and counsel for the State Central Authority as to the facts and the law.
In what I have already said and in what follows, statements of fact are findings of fact.
History
The respondent father was born in New Zealand on 28 August 1977. He is a citizen of New Zealand and a permanent resident of Australia. He is a tradesman by occupation. His partner is Ms W and together they have a child, I, who is approximately 20 months old. The respondent father is also the primary carer of S, born … September 2001. S is the respondent’s child from another relationship. S’s mother is in New Zealand. The respondent father and his family have had a number of addresses since arriving in Australia on … May 2004. They currently reside in Australia at H, a suburb of Melbourne.
The requesting parent was born on … August 1981 in New Zealand. She is a citizen of New Zealand. Her home is at A. She works as an instructor. The requesting parent has the care of a child from a subsequent relationship, E, who is about five years old. There is no information indicating whether the mother has a partner.
The parents commenced a relationship and began to live together in New Zealand in approximately 1996. M was born in New Zealand on … June 1998. The family name of L is the respondent father's mother's maiden name and, I am informed, was given to M consistently with Pacific Islander tradition.
M is a citizen of New Zealand by birth. The father is confident of obtaining permanent residency for M in Australia. However, at this stage no such application has been made on M’s behalf. There is apparently being no imperative for such an application to be made.
The parents separated in 1999 (as alleged by the requesting parent) and 2000 (as alleged by the respondent father). I am inclined to think that the former is correct but, having regard to the matters in issue, nothing turns on the conflict in evidence.
Following separation the requesting parent retained the primary care of M and an interim custody order was made in favour of the requesting parent in the R District Court in New Zealand in 1999.
On 23 May 2004 the parents signed a memorandum of consent to further interim custody and access orders[3]. It is a document for which there is no equivalent process in our jurisdiction. It appears to be an address to the court and the basis upon which the court can make orders which have been agreed upon. The memorandum recites that the respondent father will have interim custody of M and that:-
[M] may relocate with the respondent [the father] to Melbourne, Australia for a period of 12 months from the making of this order on the basis that the respondent facilitates [M’s] regular and reasonable access to the applicant as set out below and arranges for this order to be registered in Australia. It is acknowledged by the parties that this order is enforceable pursuant to the Haigh (sic) Convention.
[3] Exhibit “SCA5”, pages 37 to 42 (inclusive)
The agreement recites specific arrangements for access to occur between the requesting parent and the child in Australia. In relation to interim jurisdiction and enforcement paragraph 6 provides (emphasis added) as follows:-
6(a) Costs (if any) incurred by the applicant in successfully taking proceedings to enforce the provisions of this order under the Haigh (sic) Convention shall be paid by the respondent.
6(b) Costs (if any) incurred by the respondent in successfully taking proceedings to enforce the provisions of this order under the Haigh (sic) Convention shall be paid by the applicant.
6(c) The Family Court at North Shore shall retain jurisdiction in respect to any disputes which may arise from this interim order.
6(d) [M’s] country of domicile is New Zealand.
6(e) This interim order shall be reviewed in 12 months from the making of the order by way of call on the registrar's list and either party may apply for final orders to be made at that time.
On 28 May 2004 an order was made in the District Court at North Shore Family Court Division. A photocopy sealed copy is annexed to a number of documents filed in these proceedings[4]. The interim custody and access order follows the memorandum fairly closely. It does not depart significantly in any material respect. The memorandum and the interim custody and access orders contemplate the operation of the Hague Convention in relation to International Child Abduction rather than any other Convention concluded at The Hague. However, neither the memorandum nor the orders of 28 May 2004 specify the rights that would have been enforceable pursuant to the Hague Convention.
[4] Exhibit “SCA5”, pages 57 to 60 (inclusive)
On 29 May 2004 M travelled to Australia with the father and his household. On 1 June 2004 M commenced at G Primary School where he was a student in preparatory grade. The respondent father, his partner and children lived with the father’s brother at J. The requesting parent did not see M for the balance of 2004. She deposes that she was unable to leave New Zealand and come to Australia to see M because she could not secure the release of an order prohibiting her from removing E from New Zealand.
The respondent father’s household moved to N. M commenced in Grade 1 at O Primary School on 14 February 2005.[5]
[5] Exhibit SCA3 being documents produced by [O] Primary School in compliance with a subpoena, Student Transfer Note.
The requesting parent had access with M, in New Zealand, between 26 June 2005 and 17 July 2005. The respondent father describes M as returning “for the commencement of the next school term.[6]”
[6] Respondent father’s affidavit sworn 24 April 2007, paragraph 12
The respondent father deposes of this period in the following terms:-
“The mother was very happy with [M’s] progress generally. She would often speak with him on the telephone. In 2005 we agreed that [M] would continue to live with me in Melbourne. The mother then arranged to have consent orders made in New Zealand permitting [M] to live with me in Melbourne on a day to day basis.
On 19 May 2005 the requesting parent filed an application, in New Zealand, in the District Court at North Shore Family Court seeking custody of M. The father’s allegations, to the effect that the requesting parent was content to allow M to remain in Australia, are contradicted by affidavit evidence sworn by the requesting parent on 19 May 2005 and filed in those proceedings. The requesting parent lists the various ways in which, she says, the respondent father failed to comply with the provisions of the order made on 24 May 2004. In support of the custody application, the requesting parent deposes, inter alia:-
[16]. I am making an application for custody at this stage because I seek [M’s] return to my full time care once the interim order expires at the end of May 2005. The Respondent has breached the terms of the Order dated 28th May 2004 and I have lost confidence in him to maintain meaningful contact between me and [M].
[17]. I am seeking directions in this matter because I have been advised by my solicitor that until the Interim Custody Order expires at the end of May 2005, I am not able to show that the Order has been breached in order to meet the test of enforceability under the Hague Convention. It is my intention to seek enforceability under the Hague Convention for a return of the child to New Zealand, if [M] is not returned to New Zealand by the end of May 2005.
[18]. I believe it is in [M’s] best interests to be returned to my care.
I would respectfully ask the Court to make a Custody Order to me.
The respondent father was not responding to the requesting parent’s allegations in the New Zealand proceedings when he alleged that she was “very happy’ with M’s progress. However, there is a conflict in the parents’ accounts. On balance, I am satisfied that the requesting parent’s version of events more accurately reflects her attitudes as at mid 2005. The account of the requesting parent is more proximate in time. Her institution of custody proceedings before the expiration of the interim order is consistent with her wanting to effect a change of arrangements promptly and because she was not content with the arrangements whereby M lived in Australia. On the other hand, the respondent father’s version is sworn nearly two years later. Nonetheless, some three months later, the requesting parent did agree that M could continue to live with the respondent father, in Australia, for a further 12 months.
In August 2005 the parents entered into another memorandum of consent. The full text of that is set out in various documents on the court file[7]. The requesting parent executed the document on 17 August 2005. The respondent executed the document on 22 August 2005. It very closely resembles the earlier memorandum of consent which was executed on 23 May 2004. In particular it repeats the fact that M may ‘relocate’ with the respondent to Melbourne, Australia for a period of 12 months from the making of the order, even though M was already in Australia when his parents signed the further memorandum. Again, there is a reference to the Hague Convention (this time spelt correctly) and an acknowledgment by the parties that the order was enforceable pursuant to the Convention in relation to international child abduction, although it remained unspecified as to precisely what rights would be enforced. Again, in paragraph 1.4 of the memorandum provided:
(c) The Family Court at North Shore shall retain jurisdiction in respect to any disputes which may arise from this interim order.
(d) M's country of domicile is New Zealand.
(e) This interim order shall be reviewed in 12 months from the making of the order by way of call on the registrar's list and either party may apply for final orders to be made at that time.
[7] Exhibit “SCA5”, pages 18 to 22 (inclusive)
The applicant State Central Authority obtained evidence from New Zealand in relation to execution of the memorandum of consent. It is an affidavit of
Mary-Ann McCarty sworn on 29 May 2007. She deposes to being the practitioner who supervised the solicitor responsible for the conduct of the requesting parent’s matter. She provides a copy of the covering letter sent to the respondent father with the proposed memorandum of consent[8], it reads as follows:-
I wish to advise that our client attended our office regarding the care of [M].
Due to the Care of the (sic) Children Act 2004 being introduced on 1 July 2005, there requires to be a more detailed Consent Memorandum and Interim Parenting Order prepared.
Please find attached to this letter a draft Consent Memorandum and Interim Parenting Order for your consideration. We also suggest that you seek some independent legal advice when considering the Consent Memorandum and Interim Parenting Order.
If you do not wish to seek legal advice, then you may return the Consent Memorandum signed by you and the Interim Parenting Order to our office.
I look forward to hearing from you at your earliest convenience.
[8] Annexure A to the affidavit of Mary-Ann McCarty sworn 29 May 2007
I am satisfied that the letter and the memorandum both made it clear that the agreement between the parties was to bring into existence a further interim order in the terms of the memorandum of consent.
On 1 September 2005 an order was made. It is expressed to be pursuant to the Care of Children Act 2004. It is titled “Interim Parenting Order” and is expressed to be made “by the court by consent.” However, it differs significantly from the memorandum of consent signed by the parents on 17 and 22 August 2005. The order does not include any reference the relocation of M to Australia being limited to 12 months, it makes no mention of the Hague Convention. It does not include any reference to New Zealand as being M's place of domicile. It does not refer to any mechanics whereby final orders can be made within a specified time or the matter is reviewable. It does not specify that the Family Court in North Shore retains jurisdiction in this matter. But for the fact that it is headed “Interim Parenting Order” and the inclusion of one reference to an interim order, it reads like a final order. The day-to-day care of M is awarded to the respondent father "until the child reaches the age of 16 years (or until an earlier specified date or event as the case may be)". The order provides for contact arrangements between the mother and M by the requesting parent coming to Melbourne or M going to New Zealand.
The solicitor, Mary-Ann McCarty deposes to the circumstances leading up to the making of the order on 1 September 2005. Amongst other things, her evidence is:-
[4]. On 29 August 2005 Ms Quinn [the solicitor who had conduct of the file] forwarded to the North Shore Family Court, the signed Memorandum of Consent and draft parenting Order. Those documents were forward to the Family Court for their consideration. I attach and mark with the letter “B” a copy of the covering letter to the Court along with the singed Consent.
[5]. At this time the Care of the (sic) Children Act 2004 had been in force for approximately two months.
[6]. The inclusion of the words “until the child reaches the age of 16 years” in the draft interim parenting order, is a drafting error.
[7]. It is clear that notwithstanding the use of the words referred to in paragraph 6 herein, the intention of the parties as reflected in the consent memorandum was appropriately reflected in the fact that the order was made pursuant to the Care of the (sic) Children Act 2004, that it was an interim order, and by the use of the words “or until an earlier specified date or event as the case may be”.
[8]. Pursuant to Section 57 of the Care of the (sic) Children Act 2004 the specified date is 1 year after the date on which the order is made.
[9]. Ms Quinn asked the Court to consider the consent memorandum and the draft order. We assume that occurred. The Court, being aware that
[the father] was not represented and having considered the consent memorandum, was clearly satisfied that the draft orders accurately reflected the terms of the consent and accorded with the provisions of the Care of the (sic) Children Act 2004. I attach a copy of the sealed Order and mark it with the letter “C”.The reference by Ms McCarty to the “Care of the Children Act 2004” is erroneous. It should be a reference to the Care of Children Act 2004.
Ms McCarty’s reference to drafting errors is somewhat of an understatement. From documents and information[9] obtained through the judicial liaison, it is apparent that the document which became the order of 1 September 2005 was prepared by Ms McCarty’s office in terms that bore little resemblance to the memorandum of consent. As I have described above, it did not contain many of the matters set out in the memorandum of agreement with which it was submitted. It includes some provisions, such as being expressed to remain in force until M attains 16 years of age, which are simply not accessible from the memorandum of consent signed by the parents. The mistake appears to be as fundamental as the drafter having incorporated the wrong parts of a pro forma document. The form prescribed under the applicable Rules of Court is a FP36[10]. As submitted and sealed, the order also omits all of the standard provisions applicable to interim orders and some of the required information about consequences of failing to comply with orders. I am satisfied that the document was prepared in error and was submitted to the court without those very significant errors, being detected.
[9] Exhibit SCA5, page 49
[10] a copy of the version which appears in the Family Court Amendment Rules 2005 is annexure “C to the affidavit of the respondent’s expert witness, ANDREA MARREE MANUEL, sworn 11 June 2007
The assumption described by Ms McCarty in paragraph 9 of her affidavit (extracted above), was also not a safe assumption to make. As part of the information obtained from New Zealand during the adjournment of this matter, and in evidence before me, is a statement by the Jurisdictional Manager, Family Court, North Shore, that Ms McCarty’s office prepared the minute and that:-
“it is apparent that the Registrar did not check the order submitted by counsel.[11]”
[11] Exhibit “SCA5”, page 49
As in this jurisdiction, the District Court in New Zealand relies upon legal practitioners to ensure the conformity and accuracy of orders which are based on terms of settlement or negotiated agreements. In our family courts in Australia, practitioners or self represented litigants are also required to certify to the accuracy of what they submit.
It is conceded by counsel for the respondent father that the orders made on
1 September 2005do not reflect what the requesting parent proposed or had agreed. He contended that the order making of 1 September 2005 was attended by confusion and ambiguity but says that at all material times, he understood the orders of 1 September 2005 to be final orders. The applicant State Central Authority contends that it is an order made as a result of a series of mistakes which were not detected until after these proceedings were instituted. Whether that order was a final order, (and still extant), or an interim order (and may have lapsed[12]) is a matter which is in issue between the parties in these proceedings.
[12] Section 57 of the Care of Children Act 2004 provides that if parents of a child are parties to an interim order and, until further order, each parent has either the role of providing day to day care for, or contact with, the child, the order ceases to have effect on a specified date or 1 year after the day on which it was made (unless it has ceased to have effect sooner)
The concession made on behalf of the respondent father at the hearing before me, that the orders made on 1 September 2005 did not represent what the requesting parent had agreed, contradicts earlier sworn evidence of the respondent father, in particular, paragraphs 15 and 16 of his affidavit sworn on 24 April 2007. He deposed:-
[15]. On 1 September 2005, on instructions of the mother and by consent between us, orders were made on application to the Family Court Division of the District Court Northshore, New Zealand pursuant to Care of Children Act 2004, for [M] to live with me on a “day to day basis” until he reaches the age of 16 years. Attached hereto and marked with the letters “STL2” is a true copy of the said orders (“2005 order”).
[16]. The 2005 orders provided that the mother have contact with [M] at reasonable times. It also included all the usual contact arrangements. These orders are the only court orders currently in force. The orders provide that [M] live with me and the orders give me responsibility for his day to day care. The mother consented to [M] living with me and these orders reflect her intentions at the time of making these orders.
It was submitted by counsel for the respondent father that his client may have read the draft minute of order and fixed upon its provisions for his day to day care of M to last until M is 16 years old. Further, that once his client’s attention was fixed on the provisions of the draft order, his client may have had no regard to the description in the covering letter to the “interim orders” and that his client may have signed the five page Memorandum of Consent without reading it. I am not prepared to accept the hypothesis of counsel for the respondent father. The father could have adduced evidence to that effect but he did not.
On the first day of the hearing before me, counsel for the respondent father submitted a number of times that his client had no recollection of the circumstances in which the order of 1 September 2005 came to be in such different terms to the memorandum of consent which was signed by him. Counsel of the respondent father addressed me as follows:-
[….] my client responds to the agreement at first with ‘no recollection’ and then had an idea that there had been an agreement signed but could not remember any more. We immediately asked of the solicitors for the State Central Authority to obtain from the mother’s solicitor the information concerning what has happened and we’ve had no response to that. The mother’s solicitor is [the person] who presumably drafts these documents, goes to court, gets the order or submits the documents to the court making the order, we say, there is a clear inconsistency here which requires explanation.”
That was one of the compelling grounds for his application that the proceedings be adjourned to permit the gathering of further evidence. I am, however, unable to reconcile the assertions that the respondent cannot remember how the orders and memorandum are so mismatched with his statements, on oath, (extracted more fully above) such as “these orders [made 1 September 2005] reflect her intentions at the time of making the orders.”
Counsel for the respondent urged me not to disregard the untested evidence of the respondent. I accept that, where the court does not have the benefit of evidence being tested in cross examination, disputed affidavitory evidence should not be rejected lightly. That is the basis of the approach taken by
Jordan J at first instance and approved by the Full Court in Panayotides & Panayotides (1997) FLC 92-733 and is reflected in the extract from the observations of Butler Sloss LJ in Re F[13], to which I have referred above. However, the evidence of the respondent father, which culminates in a statement that the requesting parent agreed to, and intended that, M would reside in Australia, with him, until M is 16 years old, impresses me as being a reconstruction of events that might have led to the making of the Order made 1 September 2005 (but most likely did not). The respondent’s evidence is based on the premise that the Order of 1 September 2005 properly reflected an agreement actually reached between the requesting parent and the respondent father.
[13] Re F (A Minor) (Child Abduction) [1992] 1 FLR
I have considered the affidavit evidence submitted by the requesting parent to the courts in New Zealand in May 2005, the evidence of the requesting parent’s solicitor Ms McCarty, the fact that the only document signed by the parents was the memorandum of consent (the terms of which were clear and ought to have been familiar to the parents in the context of their agreement in May 2004) and, finally, I have considered the information contained in exhibit “SCA5” that the Registrar who signed the order did not check the accuracy of the draft order against the consent memorandum. I conclude that there was no meeting of minds by the parents and that there was no consent by the requesting parent to the order which was ultimately made. I reject the evidence of the father to the extent that he says that the order reflected the requesting parent’s intention. I am satisfied that the respondent father has tailored his evidence to suit his case and that his evidence on this topic is unreliable. I find the other evidence, cumulatively, to be sufficiently compelling that I can reject the sworn testimony of the respondent father to the contrary, and feel comfortable about doing so.
returning to M, records obtained on subpoena by the applicant from O Primary School[14] indicate that M was assessed to be at an acceptable level academically. His first Grade One report in June 2005 refers to him as “[participating] well in class and he is always eager to contribute information, however, he must learn to respect the rights of others to do the same.” In relation to personal development and work habits, his teacher commented:-
[M] has worked conscientiously during the first half of the year and has produced results of a high standard. I am confident he will sustain this effort during the remainder of the year to prepare himself for grade 2. Unfortunately he often spoils his efforts by constantly needing to be the centre of attention and he also has a tendency to ignore given instructions. [M] is a competitive, self-motivated student who takes pride in his achievements.
[14] Exhibit SCA3
His final Grade One report in December 2005 refers to him as:-
[M] is an enthusiastic student who is willing to continue with independent work in an unsupervised situation. He has pride in his achievements and is ready and eager to learn more. Unfortunately some poor playground behaviour has overshadowed some very good results. [M] needs to show more sensitivity and tolerance toward others as he is often in conflict with other children. I am sure if he makes a determined effort he should be able to overcome these problems. All the very best in grade 2, [M]!
The requesting parent had contact to M, in New Zealand, between
31 December 2005and 6 February 2006.
Upon M's return to Australia he returned to O Primary School. In mid-March, the respondent father's household moved to his current address H which is a considerable distance from O Primary School. Nonetheless, M continued to attend at school in O until 6 or 7 May 2006.
M’s last day at O Primary School was 6 or 7 May 2006. There is a letter dated 20 April 2007 annexed to the father’s affidavit from the acting principal of O Primary School stating that M attended from 14 February 2005 and was "transferred out on 8 May 2006". The school’s records include a Student Transfer Note[15] which describes M’s destination school as “overseas”.
[15] Exhibit SCA3
On 7 May 2006 the respondent father put M on a plane for New Zealand to be cared for by the requesting parent. Through his counsel the respondent father says that there were no fixed arrangements for the return of the child. It was submitted that M travelled to New Zealand was pursuant to a “fluid, flexible and undefined arrangement” between the parents.
On the other hand, in paragraph 5 of an affidavit sworn on 22 February 2007 and annexed to the application of the State Central Authority the requesting parent deposes as follows:-
“In December 2005 [M] returned to New Zealand for a holiday and stated that he did not want to return to Australia. [M] said that he had been hit with sticks by his father. I told the respondent that if he did that again I would report him to the authorities. However, the respondent and I agreed that [M] would return to the respondent's care for the commencement of school in 2006.
[M] did not settle [after returning to Australia in February 2006] and by agreement was returned to my care on a permanent basis in March 2006 where he has remained in my day to day care since that date. [16]”
The date deposed to by the mother, of “March 2006”, is plainly wrong. M remained in Australia until 7 May 2006.
[16] Requesting parent’s affidavit sworn 22 February 2007, paragraph 5
The respondent father has responded to that evidence of the requesting parent in paragraph 33 of his affidavit sworn on 24 April 2007, as follows:-
As to paragraph 5 of the mother's affidavit I say that in relation to disciplining [M] I deny ever hitting him with sticks. I also say that I did not agree with the mother that [M] would return to her full-time care in 2006. [M] is happily settled here. I agreed to [M] visiting his mother in May 2006 because of the pressure she had put on me and the demands she made of me. The mother also indicated to me that she was missing [M].
Earlier in the same affidavit, the respondent father described in more detail the circumstances of M’s return to New Zealand. He deposed:-[17]
[19]. In or about early May 2006, during the school term, the mother demanded that she wanted to see [M]. The mother put a lot of pressure on me. I felt harassed by this pressure and in the end I gave into her and sent [M] to visit his mother in New Zealand.
[20]. I did not agree to return [M] to the mother’s full time care. I agreed to send [M] to New Zealand to visit his mother only. [M] was reluctant to go. At the time of making this decision I did not obtain legal advice.
[21]. The mother kept [M] in New Zealand for about seven months. I spoke to [M] on a number of occasions when he was in New Zealand. [M] did not express a wish to continue living with his mother. I subsequently learned that she enrolled him at school.
[17] Respondent’s affidavit sworn 24 April 2007, paragraphs 19 to 21 (inclusive)
The respondent father's partner, Ms W, also swore an affidavit on 24 April 2007 and at paragraph 10 she deposes as follows:
I refer to the mother's affidavit sworn 22 February 07 and say that I deny the allegations contained in paragraph 5. I am aware that the mother placed a lot of pressure on the father to send [M] to New Zealand to visit her. The mother made numerous telephone calls during which she demanded that [M] visit her in New Zealand. The father and I discussed this matter and eventually decided that we would send [M] to New Zealand to visit his mother. The mother also said that she said that she was missing him. I can confirm that [M] went to New Zealand for a visit only on 6 May 2006. He was reluctant to go. I am aware that at the time of making this decision the father did not obtain any legal advice. I also say that [M] was not sent to New Zealand to be in the mother's care on a permanent basis.
As I have said, M was withdrawn formally from O Primary School on 8 May 2006. On the first day of the hearing before me, counsel for the respondent father said that no arrangements were made to re-enrol M in another school in Australia for the balance of the 2006 academic year because his client did not necessarily expect the child to return prior to the conclusion of the 2006 academic year. On the second day of the hearing before me, counsel for the respondent father said that the reason why M was not enrolled at a school near their new home in H in anticipation of his return to Australia was that the respondent father required M’s passport in order to do so and the passport was not available because M had taken it with him on his return to New Zealand. There is no inconsistency in the two explanations. However, if I accept both explanations, I conclude that M’s departure from Australia must have been in haste and without appropriate planning ahead for his next school year at another school.
There is no evidence about the respondent or O Primary School providing any transitional information to M’s next intended school in New Zealand or in H. All of these circumstances and the father’s evidence that:-
The mother kept [M] in New Zealand for about seven months. […]
I subsequently learned that she enrolled him at school.[18]- satisfies me that, the respondent father was only casually concerned with M’s education in New Zealand. I find that to be an unlikely attitude for the father to take in the event he envisaged M returning to school in Australia in the coming year.
[18] paragraph 21 of the affidavit of the respondent father sworn 24 April 2007
There is another record which was created contemporaneously with M’s departure. By subpoena to the Department of Immigration and Citizenship, the applicant State Central Authority obtained a copy of M’s outgoing Passenger Card for his flight to New Zealand on 7 May 2006[19]. The card was completed by Ms W. Where required to enter M’s country of residence, Ms W wrote “NZ”. Counsel for the respondent submitted that it is an unremarkable entry given that the information must be provided in association with her description of M as a “visitor or temporary entrant departing” rather than as an Australian resident departing permanently or temporarily. I accept that the card is not, of itself, cogent evidence of M’s departure being permanent.
[19] Exhibit SCA4, last page
I find the further illuminating aspects of M’s departure from Australia to be:-
● that no return ticket was purchased for his journey back to Australia;
● that there was no date by which M was to return.
Once in New Zealand, M commenced at A Primary School in A from 24 May 2006. It was term time in New Zealand when M arrived in New Zealand on
7 May 2006but he did not commence school for a little over two weeks. Counsel for the respondent father submitted that I could infer from that circumstance that, at least at first, the requesting parent intended to return M to Australia in the short term and, accordingly, did not feel compelled to have him attend school. I am not prepared to draw that inference, I do not consider that it is even available. There is not a shred of evidence emanating from the respondent father’s side that M was to be returned in the short term.
On 16 August 2006 the Deputy Registrar of the Family Court at North Shore endorsed an application filed by the mother in that court to discharge the interim parenting order made on 1 September 2005. That is an exhibit in these proceedings, “SCA2”[20]. It is a document purporting to be pursuant to s 56 of the Care of Children Act 2004 (which deals with discharging and varying parenting orders). There is another application for parenting orders. The requesting parent deposed[21]:-
[4]. On the 1st of September 2005 the Court made Interim Parenting Orders in terms of the Consent Memorandum.
[5]. An Order was made preventing me from removing my daughter, Elehxis, from New Zealand and accordingly I could not go to visit [M] at Christmas time.
[6]. The Respondent did not comply with the terms of the Order of providing me contact with [M] in New Zealand.
[7]. The matter is due for review in September 2006.
[8]. Childcare arrangements have now reversed by agreement and [M] has returned to New Zealand to live in my full time care.
[9]. [M]is residing with me and his sister [E]. It is intended that this arrangement will be permanent.
[10]. [M] is happy residing with me. He is attending [A] Primary School and is progressing well. [M] is currently having contact with his father by telephone.
[11]. Accordingly I seek final Orders placing [M] in my Day-to-Day Care with contact to [S].
[20] it is also in SCA5, pages 3 to 16 inclusive
[21] Exhibit SCA5, page 16, affidavit sworn on 14 August 2006,
The requesting parent’s application was not served on the respondent father. The address quoted for him was H1 and he actually lives at H. It is suggested that service could not be effected because the whereabouts of the respondent father was not known. I am satisfied on the evidence that the requesting parent did not have the correct address for the respondent father. I am also satisfied that she did not put much or any effort into ascertaining what it was. There was no urgency in her situation as M was living with her in New Zealand.
M completed the school year on 20 December 2006. The respondent’s evidence is “in early December 2006, during one of my telephone calls with [M], I spoke to the mother about him returning to Melbourne in December”[22].
[22] Respondent’s affidavit sworn 24 April 2007, paragraph 22
On 30 December 2006 M travelled from New Zealand to Australia. At paragraph 9 of the requesting parent's affidavit sworn 23 February 2007 she deposes:-
On 14 August 2006 I filed an application with the Family Court for a parenting order providing me with day-to-day care of [M] and outlining the respondent's contact with [M]. There was difficulty in effecting service on the respondent in Australia but as he had consented to [M] being in my day-to-day care a consent memorandum was sent to him personally. I was waiting for him to sign it and return it to me for filing with the court. In the interim the respondent and I had agreed that [M] would spend the 2006 summer school holidays with his father in Australia and would be returned to my care for the commencement of the new school year. [M] was reluctant to go but I persuaded him to and he flew to Australia on 30 December 2006. I booked for [M] to return to New Zealand on 9 February 2007.
The respondent father's response is set out in his affidavit sworn on 24 April 2007 as follows:-
[35]. As to paragraph 7 of the mother affidavit I say I was served with these documents at 6:30pm on Monday, 16 April 2007.
[36]. As to paragraph 8 of the mother's affidavit I say that I have kept the mother informed of my residential address and telephone contact numbers at all times. I also say that I received a letter from the mother's solicitors in January 2007 at my residential address.
[37]. I deny the contents of paragraph 9 of the mother's affidavit. [Wherein it was deposed that [M] travelled on 30 December for summer school holiday access only and was to return on 9 February 2007].
M was not returned to New Zealand in February 2007. The mother deposes at paragraph 10 of her affidavit as follows:-
[10]. On the 5th February 2007 I rang the Respondent to make arrangements for [M’s] return flight to New Zealand and was told by The Respondent that [M] was not going to be returned to my care. I telephoned the Respondent’s sister and asked her to speak to the Respondent as he was reneging on our childcare agreement. The Respondent’s sister advised me that the Respondent was prepared to return [M] to my care if I paid for his airfare. As this had been the agreement I was prepared to do so. However, when I went to book on the internet, I required [M’s] passport number. I phoned The Respondent to get the passport number so that I could pay for [M’s] seat on the plane, but the Respondent refused to give it to me, stating that he was not returning [M]to my care.
[11]. I have spoken to the Respondent and asked him to return [M]. I have rung several times and the Respondents partner [Ms W] has answered the phone and said the Respondent was not there. I have spoken to [M] three times since the respondent has refused to return him to my care. The last time I spoke to him was Saturday the 17th February 2007. [M] was adamant at all times that he wanted to return to New Zealand to me. My attempts to speak with The Respondent have been unsuccessful. The Respondent and [Ms W] have refused to return [M] to New Zealand.
The respondent father's response is found at paragraphs 40 and 41 of his affidavit of 24 April 2007 and that is as follows:-
[40]. As to paragraph 11 of the mother’s affidavit I say that the mother has not asked to speak to either me or my partner [Ms W]. She has spoken with [M] on numerous occasions. I believe there was a telephone call which [Ms W] answered and it was [M’s] six year old sister in New Zealand. I repeat that [M] has not indicated to me that he wishes to return to New Zealand to live with his mother on a full time basis.
[41]. As to paragraph 12 of the mother’s affidavit, I say that I have never refused contact between the mother and [M]. I have always continued to provide information about [M] generally and his school reports to the mother. She has had liberal telephone contact with [M]. These arrangements would continue should [M] continue to live with me.
My interpretation of the respondent father’s response is that it is evasive. If the situation was that, at all relevant times, it was agreed and therefore understood that M was to be returned to Australia to start school in 2006, the respondent had the perfect opportunity to swear to that agreement or arrangement when he responded to the allegations of the requesting parent. However, he did not do so. There is, in fact, no evidence before me to the effect that M was to be returned to Australia to start school in 2006. The only mention of that came in the course of submissions and from counsel for the respondent father. Submissions and statements from the bar table are not evidence.
In response to the requesting parent’s allegation, the respondent father deposes:-
[24]. In January 2007 I obtained legal advice. [M] has expressed on numerous occasions that he wishes to continue to live with us in Australia. I also received a letter from the mother’s solicitors, Natalie Dufty (sic), dated 18 January 2007. Attached hereto and marked with the letters “STL5” is a true copy of the said letter. I provided a copy of the 2005 orders and the said letter to my solicitors.
[25]. I then applied for and obtained funding through my solicitors in March 2007, in relation to [M]. My solicitors were in the process of writing to the mother’s solicitors in response to their letter and about issues pertaining to [M], when I was served with the application by the State Central Authority.
A copy of the letter which the respondent received from the requesting parent's solicitor dated 18 January 2007 is annexed to the respondent father's affidavit as “STL5”. It is from Natalie Dufty, family law barrister and mediator, and the clear purport of the letter is that they want the respondent father to sign documents acknowledging his consent to placing M in the day-to-day care of the requesting parent. In part it reads:-
If you agree with the terms of the proposed memorandum would you please arrange for your signature to the memorandum, witnessed by another person, preferably a lawyer or a justice of the peace and return the signed memorandum to me for filing with the court. It is hoped orders can be made on or before the middle of February 2007 with a review of those orders in February 2008 ... I understand [M] is very happy with the current care arrangements and that both you and [the mother] are able to arrange amicably between you the terms of [M’s] contact with you. Accordingly it is hoped that this matter can be resolved as soon as possible. If you do not consent to the memorandum an application for a parenting order in [the mother’s] favour will need to be filed with the court and served on you. It is hoped this approach will not be required. I look forward to hearing from you.
The respondent father and his counsel both query why the above letter referred to the need to file an application in the future in view of the requesting parent already having on foot the proceedings endorsed on 16 August 2006. It is a valid observation. However, I do not consider those facts to be significant. My assessment of the evidence leads me to question why the respondent husband went to get legal advice in January 2007 at all. If M was always supposed to be returned to his care, what need did he have for his affidavit material in opposition to the requesting parent’s affidavit, so imprecise. The respondent’s actions are more consistent with the actions of a parent who seeks to ‘over hold’ a child from the other parent past the date of an agreed return than a parent whose child has been returned to their rightful care after seven months away.
Now I look at the evidence of the requesting parent’s circumstances. There is a letter annexed to the materials which are sent in support of the request. It is annexure B to the requesting parent's affidavit sworn on 8 May 2007. It is from A Primary School, addressed to whom it may concern and it reads:-
[…] [M] did not return to school at the beginning of the 2007 year and we were informed by his mother, […], at the beginning of the school year that [M] was being retained in Australia. As per Ministry of Education requirements he remained on our roll for 20 school days and following further communication with [the mother] we were advised he was still in Australia. He was therefore officially removed from our roll on 6 March 2007. […]
On 23 February 2007 the mother signed the documents to make application pursuant to the Hague Convention for the summary return of M to New Zealand. That application was processed and the State Central Authority in Victoria requested to act on 16 March 2007, and on 27 March 2007 a Form 2 application was filed with the Court.
Orders were made by Carter J, ex parte, on 29 March 2007 pursuant to which M’s passport is now held by the Court.
The respondent father was served with the application and ex parte orders on
2 April 2007. On 12 April 2007 orders were made by Cronin J which required the respondent father to file documents and set the matter down for final hearing in the judicial interim hearing list, estimated to take up to half a day, on 15 May 2007. I have already discussed the basis upon which the matter was adjourned, part heard, from 15 May 2007 to 15 June 2007 and again to today.
Habitual Residence (Regulation 16(1A)(b))
The Regulations in relation to mandatory return apply, subject to certain exceptions, only if M was habitually resident in New Zealand immediately prior to the refusal of the respondent father to return him to New Zealand on, or about, on 9 February 2007.
Habitual residence is a question of fact in each individual case. In Panayotides (1997) FLC 92-733 at 83,897 the Full Court majority (Fogarty and Baker JJ) quoted with apparent approval the following passage from the judgment of the trial Judge in that case, Jordan J:
The question of habitual residence has been the subject of much judicial deliberation, and I have been referred to numerous authorities in that regard. From those authorities, the following principles emerge:
(1) the expression “habitually resident” is not to be treated as a term of art with some special meaning, but rather it is to be understood according to the ordinary literal meaning of the two words used (see, In re J (a minor) (1990) 3 WLR 949);
(2) the question of whether a person is or is not habitually resident in a specified country is a question of fact to be determined by reference to all the circumstances of the case (see, In re J (a minor) (supra);
(3) the habitual residence of a child whose parents reside together is the habitual residence of those parents (see, Re B (minor) (1993) 1 FLR 993);
(4) it is not possible for one parent to unilaterally determine a child’s habitual residence by removing that child (see, State Central Authority v McCall (1995) FLC 92-552);
(5) habitual residence refers to the parents’ habitual abode in a country:
‘Which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or long duration.’ (See, re B (minor) (supra) p.995).
I expressly adopt the aforementioned observations and those of Kay J in the Department of Health and Community Services v Casse (1995) FLC 92-629, wherein his Honour said:
‘All that the law requires for a “settled purpose” is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.’
I do not accept an interpretation of the proposition advanced in In re J [supra], wherein it might be argued that the reference in that decision to “an appreciable time” was intended to be construed as meaning a long time. In my view, once an intention to adopt an habitual residence has been reached and acted upon in a decisive way so as to provide a degree of certainty and continuity, then it may be open to a Court to find that habitual residence has been changed from that point.”
I accept as being correct, with respect, the above summary of principles in relation to habitual residence and will adopt them as applicable to the present case.
The applicant State Central Authority contends that the child never lost or abandoned New Zealand as his place of habitual residence. Reliance is placed on the fact that the memorandum signed by the parents dated 23 May 2004 and 18 August 2005 each recite that:-
The Family Court at North Shore shall retain jurisdiction in respect to any disputes which may arise from this interim order.
and
[M’s] country of domicile is New Zealand.
Furthermore that the entitlement of the respondent father to “relocate” M to Australia was expressed in 2004 and in 2005 to be for a period of 12 months and not permanent.
It was also contended on behalf of the applicant State Central Authority that, if I cannot be satisfied that M’s place of habitual residence remained New Zealand after 28 May 2004, then I ought to consider that the habitual residence of the child reverted back to New Zealand after his departure from Australia on 7 May 2006.
The respondent father’s contention is that M’s habitual residence changed on 28 May 2004 when he travelled with the respondent to Australia. The respondent says that I ought to disregard, the memorandum of consent signed by the parents immediately prior to M’s departure which provided that the father’s relocation was limited to 12 months. Likewise, I should disregard the references to M being domiciled in New Zealand, the applicability of the Hague Convention and that the New Zealand court retained jurisdiction. It was submitted that, instead, I should have regard to a passage in an affidavit sworn by the requesting parent in her application made to the New Zealand Courts in May 2005[23] as evidencing an intention by the requesting parent that M was to reside permanently in Australia. The relevant passage is found in an affidavit sworn by the requesting parent on 19 May 2005 and filed in the District Court at North Shore Family Court[24] and it reads as follows:-
[6]. I was content for the Respondent to have interim custody of [M] for one year as my intention was to finish my University studies, and to move to Australia where I could be closer to [M] and resume care of him once the interim order was reviewed in May 2005. I have a daughter who lives with me, and in respect of whom I have made application for custody in the [T] District Court. The Respondent father in those proceedings obtained an Order preventing her removal from New Zealand on 27th July 2001. I have since applied to have that Order discharged and I am waiting the outcome of that application before I make any plans to reside in Australia. I do, however, wish to resume full time care of [M] from the beginning of June 2005.
[23] these proceedings are set out in more detail at paragraphs 35 of these reasons
[24] SCA5, page 27
The Order made 1 September 2005 provides that the respondent has the day to day care of M and exclusive responsibility for M’s day to day living arrangements until he reaches the age of 16 years. The term “day to day care” is not comprehensively defined in the Care of Children Act 2004[35] and I could not see that exclusive “day to day living arrangements” were anywhere defined.
[35] Section 8 of the Care of Children Act 2004 defines to term to the extent that it includes “acre that is provided for 1 or more days or parts of days.”
The Order made on 1 September 2005 provides[36] that the requesting parent has contact at reasonable times including (my emphasis):-
The respondent [father] shall pay for a minimum of one return air ticket for [M] to travel to New Zealand for a period of no less than three weeks during the period of the interim order.
The applicant [mother] shall have unrestricted access to [M] in Melbourne provided she gives the respondent [father] 7 days notice of her intention to visit.
The respondent [father] will ensure that [M] travels to New Zealand at other times to stay with the applicant provided that the applicant pays for the return air travel and gives at least 21 days notice of the travel arrangements, and provided that the travel arrangements do not conflict with [M’s] schooling.
[36] SCA5, pages 52 and 53
Unlike the memorandum of consent or the earlier Order made 28 May 2004[37], the Order made 1 September 2005, did not specify that the respondent was entitled to relocate or the period of any such relocation. Nonetheless, it seems clear that the Order was made in contemplation of M living in Australia.
[37] SCA5, pages 57 to 60 inclusive
I also have to consider, what if anything, was the effect on the mother’s rights of custody of the respondent father sending M back to New Zealand on 7 May 2006. I am satisfied that M’s return to New Zealand was not pursuant to the provision that the requesting parent could give 21 days notice of the child’s travel arrangements and then pay the return fare for the child to visit New Zealand. M’s return to New Zealand in the middle of term 2 for Victorian schools and would have been “in conflict with [M’s] schooling” (or at least his schooling in Australia). Neither can it be that M travelled to New Zealand pursuant to the provisions in the Order that he go “for a period of no less than 3 weeks during the period of the interim order” because the order is expressed to run until M is 16 years old.
Having regard to the inherent probabilities and improbabilities, I find that M’s subsequent return to New Zealand was, in fact, a joint negation by the parents of the day to day care and contact arrangements provided for in the Order of 1 September 2005. Whether it had any effect on the legal rights of the parents is another matter.
Counsel for the respondent father submitted that, with M now back in Australia, the respondent father could use the Order made 1 September 2005 “as a shield against the operation of the mother’s rights [under the Convention for mandatory return].” That is not a construction which I am readily prepared to embrace.
I do not regard the operation of the Convention in either state to be about the assertion of artificial or superseded rights by one parent against the other. The Convention is about forum. It is designed to ensure that, with few exceptions, parents of children who are wrongfully removed or retained are required to submit to the jurisdiction of the state of habitual residence to have their parental responsibilities determined or as the case may be.
It may be a reasonable to say that the effect of the Order made on 1 September 2005 was to limit the rights of custody attributable to the requesting parent to not much more than rights of access vis a vis her ability to require M to return from Australia to New Zealand.
It may be that, according to New Zealand law, the Order made 1 September 2005 did not impact on the rights of custody attributable to the mother insofar as countries other than Australia were concerned. So, if the respondent father had taken M from Australia to, say, England, without the consent of the requesting parent, she could still have secured M’s return to Australia or New Zealand.
It may be that as:-
●the respondent sent [M] back to New Zealand in May 2006 absent any arrangement for him to return to Australia; and
●thereafter, [M] remained in the care of the requesting parent for the next eight months –
that conduct will, or may, disentitle the respondent husband from reliance, vis a vis the mother, on the Order made 1 September 2005, at least without the Family Court in New Zealand looking to the circumstances in which the Order came to be made and whether it is in M’s best interests to enforce it.
It may be that the parents are considered to have jointly repudiated the terms of the Order made on 1 September 2005 by returning M to New Zealand in May 2006. If so, then their respective rights may revert to those of joint guardians, unfettered and not enhanced.
However, these four suggestions merely speculative. There was no expert evidence adduced as to the effect of the Order made 1 September 2005 in conjunction with M being returned to her care on a voluntary and permanent basis. The State Central Authority did not adduce any expert evidence on this point. The expert upon whom the respondent father relied, Ms Manuel, did not express any opinion which extended to an assessment of the rights of the requesting parent as at February 2007 or express a view on the impact of M being returned to the requesting parent.
Regulation 29(5) permits me to take judicial notice of:-
(a) the law in force in a convention country;
(b) a decision of a judicial or administrative character made by a judicial or administrative authority of a convention country –
but it is only an evidentiary provision. It does not entitle me to interpret and apply the law absent concessions by the parties as to its operation. As part of the first step in the task before me, I am required to determine the extent of the requesting parent’s rights of custody according to the law of New Zealand. However, that determination must be based on my assessment of New Zealand law presented via expert evidence. I find the expert evidence to be lacking in this case.
Regulation 17(2) provides a mechanism by which the courts in New Zealand can be requested to determine, by application for a declaration, what rights the requesting parent had under the law of New Zealand at the time of the alleged wrongful retention. It provides:-
17(2) The court may request a responsible Central Authority to arrange for the person, institution or other body making a request in relation to the return of a child to a convention country, to obtain an order of a court, or a decision of a competent authority, of the country in which the child habitually resided immediately before his or her removal or retention declaring that the removal or retention was wrongful within the meaning of Article 3 of the Convention.
I am inclined to make a request as envisaged by the Regulation. I did not advise the parties at the hearing that I may consider doing so they have not had an opportunity to make any submissions in that respect. Accordingly, I will give them that opportunity to make submissions in opposition to that course, prior to deciding whether I will make a request pursuant to reg 17(2) of the Regulations.
My request would be confined to the appropriate authority seeking a declaration from the court in New Zealand that the retention of M in Australia on or about 9 February 2007 was wrongful according to the law of New Zealand and within the meaning of Article 3 of the Convention. It would be of assistance to me if the reasons for the granting (or the refusal to grant) the declaration could specify the constituent elements of the rights of custody found to be attributable to the requesting parent as at February 2007, including whether the right to determine the child’s place of residence was an element of whatever custody rights existed.
It is a three steps process to be undertaken as is described by Ward J (with whom Mantell LJ and Beldam LJ agreed) in Re V-B (Minors) [1999] EWCA Civ 1013 and as summarised by Finn J, in Wenceslas, to which I have referred to above. The next two steps will require me to assess whether the rights which the requesting parent has according to New Zealand law amount to a right of custody under Australian law and, if so, whether the retention was in breach of those rights. It is really quite necessary that I know the constituent elements of whatever right of custody is attributable to the mother at the relevant time especially in light of the apparent divergence between New Zealand and Australia identified in Wenceslas & Director General Department of Community Services (supra) on how rights of custody may be construed or comprised.
Of course, I am not prescribing how the courts in New Zealand approach the matter. I would like to ascertain what rights of custody were attributable to the requesting parent at 9 February 2006 and whether the retention was wrongful according to the law in force in New Zealand at the relevant time. Nothing that I have said should be taken as precluding the possibility of the requesting parent (or the Court for that matter) initiating a process whereby any deficiencies or defects in the Order made 1 September 2005 are cured. If that were to occur, the wrongfulness of the retention may be considered inclusive of any retrospective alteration of the Order.
Future considerations
At the conclusion of the second day of the hearing, I requested that each parent give consideration to arrangements for M to spend time with him or her following the conclusion of these proceedings. The requesting parent was not present but I requested that the applicant to convey my remarks and the applicant agreed to do so.
When I pronounce final orders in these proceedings, either the application will be granted and M will be returned to New Zealand or the application will be dismissed and M will stay in Australia. It seems to me that, either way, it would be prudent for the parent who is not in the same jurisdiction as M, to seek orders securing his/her time with M into the future or at least pending the outcome of whatever domestic proceedings may be initiated by either of them as a result of my determination.
If M stays in Australia, then this court should probably consider the application and make the orders. If M is returned to New Zealand, the Family Courts in New Zealand are the appropriate forum. I raise this issue for the second time to remind the parents to consider the future, quite outside the operation of the Convention, and to investigate whether they can agree now on what arrangements should be put in place after the result of these proceedings is known.
If either parent considers that court based conciliation would assist them, they should obtain the agreement of the other side to participate and then contact my Associate to ask if suitable arrangements can be made. I am contemplating that a conciliation session could be convened here, in Melbourne, by a family consultant and a Registrar of this court with the respondent father attending in person and the requesting parent being linked in by telephone (at the court’s expense). The conciliation can be privileged. So, if the parties would like the kind of conciliation process I have outlined, they need only ask.
Otherwise, my further consideration of the application of the State Central Authority, for the return of M to New Zealand pursuant to the Regulations, will await the outcome of my request to the State Central Authority to seek a declaration from the courts in New Zealand that the retention was wrongful.
I certify that the preceding one hundred and forty three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 22 June 2007
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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Statutory Construction
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