State Central Authority & Perkis
[2010] FamCA 649
•23 June 2010
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & PERKIS | [2010] FamCA 649 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – very young parents - habitual residence of young baby FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – grave risk of harm arising out of mental health problems of mother and effect of her capacity to care for child FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – consideration of whether delayed return would ameliorate grave risk to point that it was tolerable – application dismissed |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) s 100B Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg.16 |
| Department of Child Safety & Bates [2007] FamCA 570 DP v Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 Re: H & Ors (1996) 1 All ER 1 DW and Director General Department of Child Safety [2006] FamCA 93 Re B (Minor) [1993] 1 FLR 993 LK and Director-General, Department of Community Services (2009) 253 ALR 202 SCA v Wattey [2008] FamCA 1108 Re F (A Minor) (Child Abduction) (1992) 1 FLR 548 Cooper v Casey (1995) FLC 92-575 VP v A [Child Abduction] [2005] NZFLR 817 C v C [1989] 2 All ER 465 Armstrong v Evans [2000] NZFLR 984 Re C (A Minor)(Abduction) [1989] 2 All ER 465 The Director General, Department of Families, Youth and Community Care and B [2000] FamCA 253 Re G(Abduction: Psychological Harm) [1995] 1 FLR 64 Director-General, Department of Human Services and RSP [2003] FamCA 623 State Central Authority and DB [2002] FamCA 804 HZ v State Central Authority [2006] FamCA 466 S v S [1999] 3 NZLR 513 |
| APPLICANT: | State Central Authority (Victoria) |
| RESPONDENT: | Ms Perkis |
| FILE NUMBER: | MLC | 3538 | of | 2010 |
| DATE DELIVERED: | 23 June 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | The Hon. Justice Bennett |
| HEARING DATES: | 3 and 4 June 2010 and written submissions on 16 June 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms J Greenham |
| SOLICITOR FOR THE APPLICANT: | Department of Human Services, State Central Authority |
| COUNSEL FOR THE RESPONDENT: | Ms B Phelan |
| SOLICITOR FOR THE RESPONDENT: | Victoria Legal Aid, Morwell |
Orders
IT IS ORDERED:
That the application filed by the State Central Authority on 20 April 2010 be dismissed.
That the Orders made on 23 April 2010 be discharged.
That these proceedings are removed from the active pending cases list.
That all documents produced on subpoena be returned to the person or entity who produced same.
IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Perkis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3538 of 2010
| STATE CENTRAL AUTHORITY |
Applicant
And
| MS PERKIS |
Respondent
REASONS FOR JUDGMENT
Introduction
Before me is an Application filed 20 April 2010 by the State Central Authority of New Zealand under the Family Law (Child Abduction Convention) Regulations 1986 (“the Convention”).
The application concerns the child, B, born in December 2009 (“the child”). The requesting parent under the Convention is the child’s father (“the father”). The respondent is the child’s mother, Ms Perkis (“the mother”).
The application seeks the return of the child to New Zealand. The State Central Authority (“SCA”) claims that the mother left New Zealand with the child with the father’s consent for a holiday and has failed to return with the child as agreed. It is alleged that the child has been wrongfully retained in Australia since 27 March 2010.
In her Response filed 28 April 2010 the mother seeks that the SCA’s application be dismissed, that the child live with her and she have sole parental responsibility for the child. The mother also seeks that the father spend such time with the child as agreed between them.
Save for the dismissal of the application filed by the SCA, the orders sought by the mother are parenting orders which can only be made under Part VII of the Family Law Act 1975 in proceedings in which the father is a named party. I will dismiss that part of the mother’s response noting that there has been no determination of those issues on the merits vis-à-vis, the mother and the father.
Conduct of the proceedings
The proceedings were first returnable on 23 April 2010 when orders were made securing the whereabouts of the child, placing the child on the watch list and requiring the mother to file and serve responding documentation. Counsel for the mother foreshadowed that, amongst other things, the mother would rely on grave risk of harm within the meaning of reg.16(3)(b) as an exception to mandatory return. Orders were made requiring any expert evidence upon which the mother sought to rely in that regard to be filed and served by 25 May 2010 and the entitlement of the SCA to seek that the mother be examined by a competing expert was reserved until such time as the SCA had an opportunity to consider the expert evidence adduced by the mother.
On 23 April 2010 the parties agreed to me contacting the Hague Network Judge in New Zealand to ascertain what support would be available to the father, such as legal advice or social science input, for a mediation to be conducted in relation to parenting matters about the child including the proceedings under the 1980 Convention.
On 30 April 2010 the New Zealand Central Authority advised that the father “has confirmed that he is happy to mediate to arrange [the child’s] return” but, inferentially, nothing else. Extensive information was provided on the cost of video link up. No mediation took place.
There have been extensive discussions over the last two years about mediation of parenting issues in abduction cases between Australia and New Zealand, unfortunately no protocols have been settled. This Court cannot require the parties to an abduction matter under the Regulations to mediate. Understandably, the Family Court in New Zealand cannot order mediation until such time as proceedings have been instituted in that Court. Usually, mediation must be an initiative of, or at least supported by, the Central Authorities. There was no mediation in this case.
The mother filed her material and sought to rely on evidence by Dr K[1]. Relevantly, the substance of Dr K’s assessment was[2]:-
I have no concerns regarding the care of the child while the matter remains in Australia. [The mother] has substantial social and emotional support with her family and other members of her community.
It is almost inevitable that if the mother was forced to return to New Zealand she would decompensate and her anxiety and depression would redevelop, leading to problematic circumstances for the child due to the inevitable deterioration of quality of parenting if depressed.
[1] Affidavit of Dr K sworn 21 May 2010 filed 25 May 2010
[2] Page 9 of the report of Dr K annexed to the affidavit sworn on 21 May 2010
SCA did not require the mother to be assessed by its own expert. The mother required that the witnesses of the SCA be available for cross examination and the mother and her witnesses were also required.
No application was made by either party for the appointment of an independent children’s lawyer and none was appointed.
The application is brought pursuant to Div.2 Pt XIIIAA of the Act so the principles for conducting child-related proceedings provided for in Div.12A Pt VII do not apply to this case.
No objection was taken to the admissibility of any documentary evidence.
Section 100B of the Act provides that:-
(1) A child, other than a child who is or is seeking to become a party to proceedings, must not swear an affidavit for the purposes of proceedings, unless the court makes an order allowing the child to do so.
(2) A child must not be called as a witness in, or be present during, proceedings in the Family Court, or in another court when exercising jurisdiction under this Act, unless the court makes an order allowing the child to be called as a witness or to be present (as the case may be).
(3) In this section: "child" means a child under 18 years of age.
The father was born in 1992 and is therefore only 17 years of age. He is the requesting parent but is not a party to the proceedings and did not seek to become a party. I allowed the SCA to rely on the father’s affidavits and to call him as a witness, nunc pro tunc.[3]
[3] See Order made 4 June 2010.
Ms Greenham, of counsel, appeared for the SCA at the trial. Ms Phelan, of counsel, appeared for the mother. Each counsel submitted an outline of argument which was of assistance to the court.[4]
[4] Exhibit “SCA3” and Exhibit “M3”
The cross examination of the father and his mother was conducted by video link between this Registry and premises arranged by the New Zealand Central Authority in private law offices in W in New Zealand. Cross examination of the father’s sister was conducted by video link between this Registry and the Auckland Registry of the Family Court in New Zealand. This Court bore the expense of the link to W including the expense to the New Zealand Central Authority of hiring the premises and the machinery.[5] The cost of the video link up between Melbourne and W was not less than $1,350.00[6]. It was agreed that the cost of a return airfare from Melbourne to Auckland is $500.00[7]. I make the obvious observation that the father could have travelled to and been accommodated in Melbourne for both a mediation and the hearing at less expense than was involved in the video link to one destination. Presumably, he could also have seen the child on each occasion.
[5] See Order made 3 June 2010
[6] Exhibit “C2”
[7] Exhibit “M1” and Exhibit “SCA1”
At the conclusion of the first day of hearing, counsel for the SCA requested that I seek information from New Zealand as to how long it could take to finalise parenting proceedings, which are yet to be issued, in the New Zealand Family Court to be filed in either Auckland or W. The mother agreed that I make the request. The response came overnight and the communications were distributed to counsel the next morning[8]. The educated guess was between eight and fourteen months. No party sought to adduce evidence to the contrary. I appreciate the prompt consideration given to this matter by Judge Brown in New Zealand.
[8] Exhibit “C1”
In final addresses I raised with counsel for the SCA my recollection that in one or two cases Kay J had delayed the return of a child to New Zealand at least until such time as the court in New Zealand became seized of the matter. Subsequently, research revealed the case of Department of Child Safety & Bates[9]. On 16 June 2010 both parties notified their agreement to me making enquiries of what occurred in relation to the further listing of the matter in New Zealand[10]. I was interested to know to what extent the New Zealand proceedings advanced prior to the child being required to return. I expect that a response will be forthcoming reasonably soon, however, I have decided not to delay the delivery of this judgment until that time.
[9] [2007] FamCA 570
[10] Exhibit “M2” and Exhibit “SCA2”
Background
The mother was born in the Northern Territory in Australia in 1991 and is, therefore, 19 years old. Save for the five or so months which she spent in New Zealand and with which this application is concerned, she has not lived outside Australia. Her mother, brother and her stepfather live in regional Victoria. Her father lives in the Northern Territory.
The father was born in South Africa and is 17 years old. From September 2006 until late 2008 the father’s parents and sister lived in Australia. In late 2008 the father’s parents moved back to New Zealand. The application which he completed to the New Zealand Central Authority indicates that he is a citizen of New Zealand.
The mother and father met while attending Secondary College in Victoria. The mother and father commenced a relationship in or about 2007 in Victoria, Australia and began living together in a de facto relationship in October 2007. At that time the father was 15 years of age and the mother was 16 years of age. They lived initially in regional Victoria, including with the mother’s mother, her partner and the mother’s younger brother. They also lived independently. Then they moved to the Northern Territory in Central Australia where they lived with the mother’s father.
In September 2009, the mother and father travelled to New Zealand and the child was born there in December 2009. Whilst in New Zealand, they lived in a downstairs apartment in the home of the father’s mother and father and paid board. The father was gainfully employed. The mother was not employed outside the home.
The child and the respondent mother left New Zealand on 6 March 2010 for a three-week holiday in Victoria with the mother’s family. The father consented to such a holiday and agreed with the mother that she and the child would return to New Zealand on 27 March 2010.
It is alleged that by telephone conversation on 14 March 2010, the mother advised the father that she did not want to return to New Zealand.
On 19 March 2010 the mother was contacted by telephone by a lawyer, Mr Robert Harte on behalf of the New Zealand Central Authority. Mr Harte was advised by the mother that she intended to return to New Zealand with the child on 27 March 2010. This purported conversation was included within a letter sent by Mr Harte to the mother dated 19 March 2010.
On 26 March 2010 the mother filed an application in the Federal Magistrates Court of Australia seeking inter alia sole parental responsibility orders for the child. Those proceedings are still extant and have been transferred to this Court.[11] On the same day the father received an email from the mother’s legal representatives in Australia stating that the mother did not intend to return but would stay in Australia with the child and that she had applied for parenting orders in the Australian courts.
[11] On 11 May 2010 Federal Magistrate O’Sullivan transferred those proceedings from the Federal Magistrates Court to the Family Court of Australia noting that there was no evidence that the proceedings had been served on the respondent father.
The mother and the child did not return to New Zealand on 27 March 2010.
The father completed an application to the New Zealand Central Authority on 1 April 2010 which was sent to the Australian Central Authority. Ultimately, responsibility for institution of the proceedings was given to the State Central Authority for Victoria, Department of Human Services. The application was filed on 20 April 2010.[12]
The purpose of the Convention is to provide that a child who is wrongfully removed to or, retained in Australia is returned to the Convention country in which they were habitually resident immediately prior to the wrongful removal or retention, so that appropriate arrangements can be made for the child within the legal and social framework of that country.
Regulation 16 of the Convention makes it obligatory on this Court to make an order for the return of a child if the application is made within one year after the child’s removal and the relevant Central Authority satisfies the court that the child’s removal was wrongful pursuant to the legislation.
It is agreed that the 1980 Convention is in operation between Australia and New Zealand, that the child is under the age of 16 years and that the father had and was exercising rights of custody within the meaning of Regs 16(1A)(c), (d) and (e).
There are three issues which arise for determination in these proceedings.
Firstly, the mother contends that the return of the child to New Zealand is not permitted under the Regulations because the child was not habitually resident in New Zealand as required by reg. 16(1A)(b). Habitual residence is a pre-requisite to the Regulations being engaged. Unless the court is satisfied that the child was habitually resident in New Zealand as at 27 March 2010 the application must fail.
Secondly, if the court finds that the child was habitually resident in New Zealand at the relevant time, the mother’s case is that mandatory return under the Regulations is not required because the return of the child to New Zealand will expose him to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation within the meaning of reg.16(3)(b).
Thirdly, how should any discretion to refuse return be exercised? If the mother establishes, by evidence and submissions, that a grave risk exists the court then has a discretion to refuse return. The mother contends that such discretion ought to be exercised in her favour. The SCA submits that the child should be returned nonetheless.
Onus and standard of proof
The onus of proof lies with the SCA in relation to establishing the habitual residence of the child.
The onus of proof lies with the mother in relation to the grave risk exception. In the High Court case DP v Central Authority; JLM v Director-General, NSW Department of Community Services[13] the plurality (Gaudron, Gummow and Hayne JJ, with whom Callinan J specifically agreed) said (at [41]):
The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in "an intolerable situation". That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description "grave". Leaving aside the reference to "intolerable situation", and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
[13] (2001) 206 CLR 401; (2001) FLC 93-081
In the context of the exercise of any discretion to refuse to return the child to New Zealand, which arises in the event that the grave risk exception applies, the parties bear the onus of proof for the result for which they contend. The best interests of the child principles are applicable to the exercise of this discretion.
As required by s 140(1) of the Evidence Act 1995 (Cth) I will apply the balance of probabilities as the standard of proof.
In Re: H & Ors [14], a case involving a wardship application, Lord Nicholls discussed what is meant by “balance of probabilities”. 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.
[14] (1996) 1 All ER 1 at 16.
Every witness who was requested for cross examination was cross examined.
In these reasons, statements of fact are findings of fact.
State Central Authority’s case
Relevantly, the SCA sought to rely on the following evidence:-
a)affidavits of THE FATHER, being the affidavit sworn 1 April 2010 which is attached to the Application filed 20 April 2010 and the affidavit sworn on 6 May 2010 attached to the affidavit of Colleen Carey sworn 7 May 2010;
b)affidavit of the PATERNAL GRANDMOTHER, the father’s mother, sworn 6 May 2010 (attached to affidavit of Colleen Carey, solicitor sworn 7 May 2010);
c)affidavit of MR Y, real estate agent, sworn 7 May 2010 (attached to affidavit of Colleen Carey, solicitor sworn 7 May 2010);
d)affidavit of MS S, elderly neighbour, sworn 5 May 2010 (attached to affidavit of Colleen Carey, solicitor sworn 7 May 2010);
e)affidavit of MS E, nurse and co-worker of father’s mother, sworn 5 May 2010 (attached to affidavit of Colleen Carey, solicitor sworn 7 May 2010);
f)affidavit of SJ, the father’s sister, sworn 7 May 2010 (attached to affidavit of Colleen Carey, solicitor sworn 7 May 2010);
g)affidavit of MS G, bank officer, sworn 7 May 2010 (attached to affidavit of Colleen Carey, solicitor sworn 7 May 2010);
h)affidavit of DR C, medical practitioner, sworn 5 May 2010 (attached to affidavit of Colleen Carey, solicitor sworn 7 May 2010);
i)affidavit COLLEEN CAREY sworn 2 June 2010 in relation to particular social security payments available in New Zealand and attaching affidavit of ANDREW JOHN EASTERBROOK sworn 2 June 2010;
j)affidavit of ANDREW JOHN EASTERBROOK, lawyer for the New Zealand Central Authority, sworn 4 June 2010;
The father claims that the mother’s retention of the child in Australia was “a complete surprise to me. I did not think anything was wrong until she said she was not going to come back to New Zealand. We planned to live in New Zealand and we did not think about returning to Australia to live or for taking the child there for anything more than a holiday.”[15] He deposes to them having a “healthy, positive, playful de facto relationship. We were very close and didn’t keep secrets, and confided in each other as any couple would.”[16]
[15] Father’s affidavit sworn 1 April 2010, para [37]
[16] Father’s affidavit sworn 1 April 2010, para [8]
In the father’s initial affidavit, he deposes to a relatively uneventful lead up to the departure of the mother and the child on 6 March 2010 for a three week holiday in Australia. He deposes to a period after the mother’s arrival in Australia of not being able to speak with her then to the mother informing him, on 14 March 2010, “that she did not want to come back to New Zealand”.
The father deposed that he and the mother chose to relocate to New Zealand for a variety of reasons[17], including that they were running out of money and the mother’s father was not offering any financial support in the Northern Territory. He also deposed that the mother was “not really getting along” with her father, with whom they were living. He deposed that the parties looked at rental accommodation in New Zealand and that his parents were “very willing to offer help and support” and offered them a place to live for free until the father obtained employment. The father deposes that when he and the mother arrived in New Zealand they lived with the paternal grandparents. He further deposed that he and the mother made plans to save money and buy a business, such as a café and that the mother was going to go to beauty school. He also claimed his parents told them they would have to “start looking for a place” when the child was three months old.
[17] Father’s affidavit sworn 1 April 2010, para [9]
The father deposed that he was the sole income earner and that he would give the mother his debit card “to get money out as she needed”.
The father claims that he and the mother “lived independently” of his parents, they paid board of $150.00 per week and would have dinner with them “once a week or so”. The father claims that he and the mother “shared everything” and that they did housework and cooking together. The father claims that he and the mother began looking for places to rent in about February 2010. He deposed to them inspecting “about eight places together” including going out once with a real estate agent.
The father further claims that he was actively involved in the child’s care and development and that after the child’s birth, he and the mother “did not often go out to social events or parties”. He deposes to them leaving the child with the paternal grandparents on occasion, including “a couple of trips away to Auckland…including New Years Eve” and “for a couple of hours if it was a hot day so we could go to the beach for a swim”.
As to the child’s behaviour, the father deposes to the child sleeping “quite well and would not normally wake up until the morning”. He also deposes to he and the mother sharing the responsibilities for looking after the child, including making a joint decision as to the child’s formula and his feeding and changing of his nappies.
As to the mother’s planned holiday to Australia, the father claims that she told him in early February 2010 that she would like to visit her parents. He claims she told him her mother had offered to buy tickets for a month-long holiday. The father deposes to having thought that a month was too long for the child to be away, and asked the mother to wait until April when he would be able to accompany them. The father claims the mother then told him the maternal grandmother said the offer was for “a month long trip now or nothing”.
The father deposes that the mother’s information to him had changed. He claims that she initially said it would be a two week holiday, then that about a week before she left, she told him it was “actually for three weeks”.
After the mother’s arrival in Australia on 6 March 2010, the father claims he rang the mother at the maternal grandmother’s house on 7 March 2010. He deposes to being told by the maternal grandmother that the mother was still asleep. The father then deposed to calling again on 8 March 2010 and he and the mother “talked like everything was normal”.
On 14 March 2010 the father telephoned the mother and was told that she did not want to return to New Zealand. He deposed to being worried and texting and calling her many times that night. He deposes to calling the mother again on 15 March 2010 and when he asked her whether she was going to come back to New Zealand, the mother said to him that “she already told me and ended the conversation”.
The father claims he then contacted the New Zealand Central Authority who put him in contact with a lawyer, Mr Robert Harte.
On 26 March 2010 the father claims he drove to Auckland expecting to collect the mother and child the next day. On his arrival into Auckland the father deposes to receive a text message from the mother informing him to check his emails.
The father deposes that he is willing to pay the costs of the child’s return to New Zealand.
The mother
The mother sought to rely on the following evidence:-
a)her affidavits sworn 21 April 2010: 26 March 2010 (in her Federal Magistrates Court proceedings DGC994/2010); 25 May 2010;
b) her financial statement sworn 25 May 2010;
c)the affidavit of THE MATERNAL GRANDMOTHER, the mother’s mother, sworn 30 April 2010 to which a copy of that deponent’s affidavit sworn 31 March 2010 in the Federal Magistrates’ Court is attached.
It is the mother’s case that she informed the father on 7 March 2010 that their relationship was over. She deposes to abusive behaviour on the part of the father towards her and members of her family during their relationship in both Australia and New Zealand. The mother deposes that she was pressured into travelling to New Zealand, that that she had informed the father she did not want to go and that the only reason for their travel to New Zealand was “because the father and paternal grandmother wanted the baby to be born in New Zealand”.[18]
[18] Affidavit of mother filed 28.4.10 para [6]
The mother claims that part of the agreement between her and the father in travelling to New Zealand was that they would go there “for a while to see how it was living there and if I did not want to stay there, we would return to Australia”.[19] She deposed that the father told her to “think of it as a holiday” and she claims she believed the move would be temporary unless she made the decision to live there permanently.
[19] Affidavit of mother filed 28.4.10 para [10]
The mother alleges that she decided she wanted to return to Australia “within a month” of their arrival. She deposes that “[in] late October or early November I told the father I wanted to return to Australia for the birth of the baby, as I wanted to have the support of my family. I rang Air New Zealand and they told me to get a doctor’s certificate so I could fly. I suggested to the father that he come to Australia for the birth and we would fly back to New Zealand together. The father refused. He made me feel guilty about him not being at the birth, so I remained in New Zealand. I did not know at the time that there could be a legal problem if I decided to return to Australia with the child after he was born”.[20]
[20] Affidavit of mother filed 28.4.10 para [18]
The mother deposed that she chose to stay in New Zealand after the child’s birth and to work at the relationship for the child’s sake. She claims that between December 2009 and March 2010 she became very depressed and “felt helpless”. She claims that their relationship deteriorated, that she “felt trapped”, had no support in New Zealand and was ineligible for welfare payments in New Zealand. The mother further claimed that the father “reneged” on his promise that they would return to Australia to live at any time if she so wished.
The mother deposed to the father being controlling with their money. The mother also claims that the father showed minimal interest in the child and was not involved in the child’s day-to-day care and welfare.
The mother claims that she did tell Mr Harte that she would return to New Zealand on 27 March 2010. She deposed that she was not sure if Mr Harte was indeed a lawyer from New Zealand, or a friend of the father’s impersonating a lawyer. She claimed that she told Mr Harte she did not want to return to New Zealand but that she had a return ticket for 27 March 2010.
The mother alleges that the father was aware she was unhappy in New Zealand and about her wish to return to Australia. The mother deposed that she never had the “settled intention” to remain in New Zealand and that she believed returning to Australia in the short term was an option she had and that she now wants to take up.
In her affidavit sworn and filed 26 March 2010, the mother deposes to the father being “abusive throughout the relationship” and that he was “particularly violent” towards her the night before her departure to Australia.
The mother deposed that upon her arrival in New Zealand, the paternal grandmother “seemed be [sic] obsessed with the baby and it made me feel very uneasy”. She further deposed that the paternal grandmother would refer to the child as “my baby” and that she said to the mother “I don’t care about you and [the father], for me and [N] it’s all about the baby”.
The mother claims that the father’s attitude towards the paternal grandmother’s behaviour was that it was “normal” and that she was just “excited” and the father “refused to discuss it”.
The mother claims that within a month of her arrival in New Zealand she rang her mother “nearly every day” and would cry when speaking to her. The mother claims that she wanted to return to Australia for the birth of the child, however the father refused to accompany her and made her “feel guilty about him not being at the birth” if she went alone, and so she remained in New Zealand.
The mother alleges that the father only assisted her with the child for the first two weeks after the birth, after which point “he lost interest”. She further alleges that the paternal grandmother complained about the way the mother cared for the child, that “she checked up on me all the time and I felt intimidated by her”. The mother claims the paternal grandmother “was very controlling and ‘in your face’” and that she “demanded that the child spend time upstairs with her each day”.
The mother claims that in January 2010 her mother offered to pay her return fare to Australia for a family event on 20 January but the father would not agree and she did not go.
In early February 2010 the mother claims that the maternal grandmother suggested she and the child travel to Australia from 6 to 20 March 2010. The mother deposes that at that time her intention “was to see my family and introduce them to [the child], then return to New Zealand to see if I could work things out with the father”.
The mother claims that on 1 February 2010 her relationship with the paternal grandmother further deteriorated, with the paternal grandmother denigrating her parenting skills and calling her “a fucking bitch” and “a slut”.
The mother deposes to a series of events before her departure to Australia on 5 and 6 March 2010 involving violence on the part of the father towards her. The mother claims that on the evening of 5 March 2010, she accompanied the father to a friend’s house for drinks and the child was left with the paternal grandmother. They returned home at about 1.00am and upon their arrival the child was asleep in the paternal grandparents’ bed. The mother claims that “they would not let me take him”. The mother went back to ask the father to get the child, however the father “became very angry and he grabbed me and pushed me backwards very roughly”. The mother claims the father was “swearing and yelling” at her for about an hour and that he was “grabbing my arms and pushing and shoving me”.
The mother deposed that the paternal grandmother then brought the child downstairs and, while the child was in the mother’s arms, the father “wrenched him from me…pushed me and hit me twice on the arm, hard enough to causing [sic] bruising”. The mother claims she ran outside to escape the father, but he followed her, grabbed her by the arms and slammed her into a wall.
The mother claims that at 2.00am on 6 March 2010 the father said he was leaving to drive to Auckland and that he would drop her at the airport. The mother refused to go with the father, as he “was much too drunk to drive”. The father left and the mother claims she “was left with $120.00 to get to Australia”.
The mother deposes to calling the maternal grandmother after the father left. The maternal grandmother advised her to get herself and the child to the “safety of the airport”. The mother departed in a taxi at 6.00am with one suitcase and the child’s pram. The mother claims that she “was scared the father or the grandmother would come and try to stop me leaving”.
The mother claims she received text messages from the father at both W and Auckland airports which “were abusive” and to which she did not reply. The mother sets out in full two messages which the father admitted to sending, they were:-
Fuk ura rude kunt meh nu gt bef not [child] fukn bitch dnt knw hw u kan bea fuk dat wont even le meh sai gudi ta ma bbi fukd up kunt.
And
Didn’t make him on ur own fukn kunt.
The mother further claimed the paternal grandmother sent her a message accusing her of “leaving like a thief in the night”.
On Sunday 7 March 2010, the mother claims the father rang her at the maternal grandmother’s home and asked her if she was going to return with the child to New Zealand. The mother deposes that she told him “the relationship was over” and that he could ring her about the child, “but other than that, I did not want to talk to him”.
The mother claims that since her arrival in Australia, the father has harassed her “with hundred of text messages and phone calls” to the maternal grandmother’s home and to her mobile phone. She claims the maternal grandmother has had to “put a stop on incoming international calls” to enable her brother to study.
On 17 March 2010, the mother claims that she received the following text message from the father:
“Ths iz 2 infrm that iv sent a letter requesztn tha return of my child under ther hague convention child abduction act”.
On 18 March 2010, the mother sought legal advice and deposes that she was told if she did not return to New Zealand on 27 March 2010, that the father could commence legal proceedings to have the child returned to him.
On 19 March 2010 the mother obtained an Australian citizenship for the child by descent. On the same day, the mother deposes to receiving a telephone call from “a person who told me he was a New Zealand lawyer”. The mother was asked by the caller if she intended to return the child to New Zealand. The mother claims she was “very guarded” during this phone call as she was “not convinced that the person was a lawyer”. The mother deposes that she told the person that she “did not want to go back to New Zealand” but that she had a return ticket for 27 March 2010. The mother denies that she told the person she intended to return to New Zealand on 27 March 2010.
In her affidavit sworn on 26 March 2010 (for the Federal Magistrates Court proceedings), the mother gives various reasons as to why she has decided to stay in Australia and have the child live with her. She claims that her and the child’s safety is at risk for the following reasons:
(a)The father was violent towards me throughout the relationship. While we were living in Australia he pushed and shoved me and verbally abused me on most days. He was also verbally abusive to members of my family, especially my mother, as she often tried to protect me from him. The abuse escalated when we moved to New Zealand, culminating in the incident of physical and verbal violence in the early hours of 6 March 2010. During that incident the father did not act to protect [the child], in fact [the child] was at risk of being hurt by the father.
(b)I am scared of [the paternal grandmother]. She verbally abused me, denigrating my parenting skills and generally treated me very badly while I was living in New Zealand. Her abuse escalated after [the child] was born. By late January 2010, her behaviour towards me made me fear for my safety when I was in her company. She also tried to take over parenting [the child].
42.I do not have anywhere to live in New Zealand. In the circumstances, I cannot return to live with the father. I do not know anyone else in New Zealand who can support me emotionally and financially. I am not eligible for welfare payments in New Zealand and I do not have any savings.
The mother deposes that she has “always been [the child’s] primary carer”. She and the father met in Australia and during the relationship they lived together in Australia for two years and lived together in New Zealand for a period of six months. She claims she never regarded New Zealand as her home.
The mother deposes to the current arrangements for the child, including that:
a)she and the child are currently living with the maternal grandmother, the maternal step-grandfather and her brother in their home in regional Victoria;
b)the child sleeps in a cot in the mother’s room;
c)the mother has applied for Centrelink benefits and intends to find her own accommodation when she has saved enough money;
d)she intends to do a course by distance education so she can work from home; and
e)she now feels safe and supported and is “able to enjoy my role as [the child’s] mother”.
Assessment of witnesses
I found the ability to observe witnesses give evidence and be cross examined to be of enormous assistance in reconciling conflicting or inconsistent evidence on the relatively few facts which are relevant to my determination of this case.
The mother and father were cross-examined.
The mother appeared to answer questions honestly, she was polite and did not appear to be of low mood. The mother did not overstate her own case in any respect. She made concessions although these were made without any apparent consciousness that the evidence would not assist her case. The mother’s evidence on relevant matters was not shaken in cross examination. I considered her to be a truthful witness both in her affidavit material and viva voce.
The father’s evidence was given remotely, by video link. By virtue of his age, lack of life experience and giving evidence from the familiar surroundings of the office of the lawyer for the New Zealand Central Authority, I take into account that he probably felt less constrained than the witnesses in Melbourne who attended court, entered the witness box and gave evidence in the solemn atmosphere of a courtroom. Furthermore, it is apparent that the father does not take any responsibility for the mother’s refusal to return to New Zealand. It follows that he feels wronged and, most likely, frustrated and angry.
Making all allowances that I can, however, my observations are that he is an immature young man even for his chronological age and, in my view, prone to anger quickly with little impulse control.
The omissions in his first affidavit, sworn 1 April 2010, reflect poorly on his credibility. He made no mention that there was an angry dispute in the early hours of the day that the mother and the child departed New Zealand or that he left home, “drunk” at 2.00 a.m. and drove to Auckland accompanied by a friend, for no good reason. He made no mention of the abusive text messages to the mother which are extracted earlier in these reasons at paragraph 80. Although only of peripheral relevance to the issues at hand, I cannot accept his evidence that he was surprised by the mother’s refusal to return. I accept that he provided better context in his second affidavit sworn on 6 May 2010 and was a more accurate historian and more truthful under cross-examination.
The father’s sister was cross-examined. Her affidavit evidence was of little relevance to the issues at hand and cross-examination of her was inconsequential.
I regard the evidence of the witnesses who were not required for cross examination as being unchallenged save to the extent that the mother provided evidence on affidavit or was cross-examined in that respect. They included Ms S, Ms E, Ms G and Dr C. However, the matters to which they deposed were of little, if any, assistance to me. I accept the evidence of Mr Y, the real estate agent. The information to which Colleen Carey and Andrew Easterbrook deposed was about government benefits. It was not cogent because it was not well organised and not possible to interpret.
The paternal grandmother was cross-examined. She admitted to referring to the parents’ downstairs apartment, as a “pigsty” and telling the mother to clean it. She denies calling the mother “a slut”. However, the father gave evidence which contradicted the evidence of his mother. He said that his mother was respectful of the mother but, in cross examination, he agreed that the paternal grandmother had called the mother “a slut”.
My impression of the paternal grandmother based on all of her evidence is that she was at times disregarding and harsh with the mother and I regard utterances such as “pigsty” and “slut” as abusive in this context. She gave evidence that the mother “did seem happy” and “never said she was unhappy”. The paternal grandmother said that it was “really difficulty to say if the mother was anxious and depressed in New Zealand, any difficulties could be around the baby and being a first time mother. I didn’t feel that she was unhappy” or words to that effect. Like the father, the paternal grandmother gave evidence that she was surprised by the mother’s refusal to return.
My impression of the paternal grandmother is that she was disregarding of the mother. Sometimes the disregard was insensitive such as saying that the baby is what mattered most to her. Other times it was a callous disregard such as taking the baby from the mother when she did not want her to or requiring the baby to spend some time with her. I am satisfied that there were periods of verbal abuse during which time the mother may not have been as well behaved as she was in the witness box but which, nonetheless, reflect poorly on the tone of the paternal grandmother’s household.
I do not know whether it is by reason of lack of perception, insensitivity or dishonesty by the father and his mother, however, my impression is that their evidence was generally less accurate than the mother’s evidence. Where the evidence of the mother on a relevant issue conflicts the evidence of the father or the paternal grandmother, I prefer the evidence of the mother.
The maternal grandmother was cross-examined. Most focus was given to the issue of whether, in the event that the child is required to be returned to New Zealand, she would accompany the mother back to New Zealand as a support person. It was fairly obvious that she could not do so for months on end but Ms Greenham, counsel for the SCA, asked a series of questions about the maternal grandmother’s preparedness to go for two to three days to accompany the mother during any court ordered assessment by a social worker or psychologist and then for one or two weeks for a trial. Her response was that she was unlikely to be able to find the time. Her demeanour was hesitant, as if she had rehearsed her answers. The maternal grandmother prioritised the fairly limited task of possibly assisting the mother’s younger brother with his enrolment for tertiary education over supporting her daughter, in New Zealand, for any time. The maternal grandmother’s ultimate concession that she might be able to go to New Zealand if she could plan in advance and there was no conflicting commitment was made with reluctance.
In final submissions, Ms Greenham was critical of the maternal grandmother’s evidence. She asked me to regard the maternal grandmother as having tailored her evidence on this point for strategic purposes, in particular, so that the mother could say that she would be without any adequate support in New Zealand even if the child’s return was to be delayed until the point of a final hearing. It is a fair comment. That said, I am not as convinced as Dr K that the maternal grandmother is the panacea in relation to providing support to the mother in Australia or in New Zealand. I note that, in December 2009/ January 2010, when the mother was at an apparently low point, “very upset and depressed” and the maternal grandmother had not seen her new grandson, the maternal grandmother did not suggest that she would visit the mother in New Zealand to assist her with the new baby or even for a short visit.
Habitual residence
The Court is only required to exercise its power to make a return order, subject to the exception in reg. 16(3), if the child was habitually resident in New Zealand immediately prior to the mother’s detention of him in Australia after 27 March 2010.
The principles upon which habitual residence is established were well-enounced by the Full Court in DW and Director General Department of Child Safety[21]. The appeal Judges Finn and May JJ (with Holden J dissenting) referred to the statement in Re B (Minor)[22] p.995 to the effect that habitual residence refers to the parents’ habitual abode in a country which parents 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. In that judgment Waite J observed ‘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.’. Specifically, in relation to the characteristics of shared the intention, their Honours stated, at paragraph 48 of the majority judgment:-
We regard the word “shared” as having the same meaning as “same” or “common”. That is, that the parties in question had the same or a common intention about their future living arrangements, even though – life being what it is – they may not have had a specific discussion and/or reached a clear agreement regarding their future living arrangements.
[21] [2006] FamCA 93
[22] [1993] 1 FLR 993
In DW and Director General Department of Child Safety, their Honours were satisfied that the mother of the children only entered the United States to see if the family could see how life “worked out”. As such, the majority found that the mother never formulated an absolute intention to settle in the United States. It seems in the DW case that the mother’s qualified intention was considered, at least by the majority, to be incapable of constituting an intention which was shared with the father. Their Honours considered the principles associated with habitual residence to include that:
a)habitual residence is a question of fact determined by reference to the circumstances of the case; and
b)the habitual residence of a child whose parents reside together is the habitual residence of those parents; and
c)it is not possible for one parent to unilaterally determine a child’s habitual residence by removing that child (at [43]).
In the recent case of LK and Director-General, Department of Community Services[23] the High Court considered the determination of habitual residence. The Court makes two preliminary observations regarding the criteria for determining a child’s place of habitual residence. First, there is a wide variety of circumstances that bear upon where a child resides and whether that residence is habitual. Second, the past and present intentions of a child’s parents will affect the significance to be attached to particular circumstances, such as the duration of a person’s connections with a place of residence.
[23] [2009] HCA 9 (11 March 2009).
Turning then to the intention of the mother and father, it is clear from the facts of this case that there was no clear intention expressed by them that the child should become habitually resident in Australia or New Zealand. It is the mother’s evidence that she never intended to stay in New Zealand, or that she saw it as a temporary solution that may or may not become a permanent decision. She deposed[24]:-
45. Before the father and I moved to New Zealand the father said to me “you can come back any time, just think of it as a holiday”. In late October or early November 2009, prior to [the child’s] birth, I informed the father that I wanted to move back to Australia. I delayed moving because I was pregnant and due to give birth in December and the father wanted to be at the birth. Arrangements had already been made for me to give birth at [W] Hospital. I had no reason to believe that if [the child] was born in New Zealand, the father would stop me taking [the child] to Australia. I did not get legal advice about this possibility prior to [the child’s] birth.
46. I now believe that the father and [paternal grandmother] tricked me into giving birth to [the child] in New Zealand and that the father had no intention of returning to Australia with me if I chose to return.
[24] Mother’s affidavit sworn 26 March 2010
The father agreed that he told the mother to think of going to New Zealand late in her pregnancy “as a holiday”. In cross examination his evidence was that he made that statement “to make her feel better. This was the first time she’d been out of Australia.”
The circumstances of the parents entering New Zealand was examined in some detail in oral evidence. The father’s parents travelled to Melbourne to collect the mother and father to take them back to New Zealand. The mother and father travelled from the Northern Territory. The father’s parents paid for everyone to be accommodated at a caravan park in the Melbourne metropolitan area before boarding the flight to New Zealand. The mother’s evidence was that the father’s mother suggested that she hold back and let her talk for the family due to a concern that, if the immigration authorities thought that the mother was coming to New Zealand to have a baby, they might not admit her. The mother’s evidence was that she represented her entry into New Zealand as a “holiday” and did so at the suggestion of the paternal grandmother. When asked, the mother conceded that she cooperated with the father’s family to try to conceal from the authorities her intention to go give birth to her child in New Zealand and to reside there for other than a holiday. The father’s evidence did not contradict the mother’s evidence. The paternal grandmother denied any collusion in this respect or even a level of cooperation resembling it.
My impression is that the mother’s version of events is more accurate than that of the paternal grandmother. I do not exclude the possibility that the paternal grandmother may not have consciously acted as prescriptively as the mother says but I regard the mother’s evidence as a genuine attempt to recall. It is also difficult to understand why the mother would make up such a story. Her concession does not assist her case. On the other hand, in my view, it is also consistent with her going to New Zealand with a view to remaining there permanently after the birth of the baby if she and the father agreed that they would.
I accept the mother’s evidence, that she did not think that having a baby in New Zealand would make any difference to her ability to leave (with the baby) subsequently. I accept that she was that naive and, seemingly, the father and his parents were her only support. Moreover, she was then yet to experience what she subsequently describes as the off putting and overbearing conduct of the paternal grandmother.
Regarding intention, in LK and Director-General, Department of Community Services[25] the High Court notes that a parent’s intentions will usually be relevant, but not necessarily determinative of habitual residence. Furthermore, the Court notes that a person’s intentions may be ambiguous. In that case, the mother had left Israel with the children on the understanding that if she and the father reconciled they would return to Israel, but if they did not reconcile she and the children would remain in Australia. Their Honours found that it was appropriate to have regard to the steps the mother took before and after her arrival in Australia as supporting the mother’s argument that it was her intention to move to Australia unless the marriage reconciled. The High Court draws several points from the ambiguities of the parents’ intentions:
[32]…because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.
[33]Second, because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually.
[34]Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.[26]
[25] (2009) 253 ALR 202
[26] Ibid at 212 [32-34] (emphasis in original).
Following the above discussion, the High Court unanimously concluded that a closed set, or a hierarchical set, of criteria would not assist in making a decision which could potentially fall into a very wide range of circumstances. The principles expressed by the High Court are binding on this Court.
It was submitted[27] by the SCA that the mother’s intention of reside habitually in New Zealand can be inferred from several matters including the following:-
a)The father sold his car, they packed up all their belongings and had one way tickets to New Zealand. The mother’s response was that they had few possessions, did not intend to return to the Northern Territory and the father’s parents paid for one way tickets. These matters are equivocal of the parties intention;
b)They forwent a baby bonus of $5,000 by not having the baby in Australia. The mother’s response was that the paternal grandmother assured her that she would pay an amount equivalent to the baby bonus.
c)When the mother left Australia, she well knew that she would not be able to fly back until after the birth of the baby. This is contradicted by subsequent evidence of the mother, which was not challenged, that she took preliminary steps to return to Australia with Air New Zealand on provision of a medical certificate;
d)The father alleges that the mother planned to go to beauty school, they planned to buy a house and a business. Having regard to the age and the means of the parties, my impression of these matters is that they were aspirational rather than indicative of the couple putting down roots in New Zealand. None of plans outlined above occurred. On one construction, there is a conflict of evidence between the mother and Ms G as to conversations about the parents’ eligibility for a loan. I note, however, that any alleged conversations were social rather than within the setting of an appointment to see a bank officer. The Kiwisaver scheme was an account into which the mother says she made no personal contribution. The contribution standing to the credit of the mother came by way of government benefit. Ms G deposes that “in about November 2009 they announced that their long term goal was to purchase a house in New Zealand”[28]. It is not clear to me on what basis the “announcement” was made, there is no such incident described by the father in his material. It may have been no more than an attempt by young people to make conversation or to make a favourable impression. I am unable to make a finding either way.
e)Reliance is placed on the father obtaining employment, the parties opening bank accounts, paying board to the father’s parents, obtaining “medical care for their baby”, buying a car, buying baby furniture and purchasing pre-paid mobile telephones (for $20 each). I accept the submission of counsel for the mother that none of these matters are particularly permanent. They were a very young couple of limited financial means. The father could not afford not to work.
f)Reliance was also placed on receipt by the father of parental leave and a family tax credit but these are routine consequences of his employment in New Zealand.
[27] Applicant’s outline of case “Exhibit SCA3”, [9]
[28] Affidavit of Ms G sworn 7 May 2010 [5]
Reliance was also placed by the SCA on the fact that the couple acquired a cat. The father’s evidence is that the mother purchased the cat. That was not contradicted. There was no evidence about where the cat is now. Some people buy a cat or domestic pet recognising that they assume a commitment to keep the cat for the rest of its life. Another person will buy a cat because they want a cat and think that they will provide for it into the future but, when it is not longer convenient, be prepared to dispose of it or abandon it without a backward glance. I have considered whether the acquisition of the cat is, in this case, a potent indication of an intention to remain in New Zealand permanently. I think not. The mother and the father could barely look after themselves. The acquisition of the cat by the mother, with which I assume the father acquiesced or encouraged, was most likely an irresponsible act rather than a commitment to cat or country.
In summary, the above matters do not impress me when viewed individually or cumulatively as indicative of a shared intention to remain in New Zealand.
There was another matter to which the SCA referred which I accept is indicative of the mother having adopted New Zealand has her home for the time being. In the mother’s affidavit sworn 26 March 2010 she deposed:-
24.In early February 2010, my mother suggested that [the child] and I visit her in Australia from 6 to 20 March. The father was not happy, but my step-father booked flights from Auckland to Melbourne on 6 March, returning to Aukland on 27 March. At that time my intention was to see my family and introduce them to [the child], then return to New Zealand to see if I could work things out with the father.
25.On 1 February my relationship with [the paternal grandmother] deteriorated further. She made disparaging remarks about my parenting of [the child] and called me a “fucking bitch” and a “slut”. She told me to get downstairs and clean up the “pig sty”.
26.I felt my position had become untenable and I stopped talking to [the paternal grandmother]. The father would take [the child] upstairs to see her after he finished work. On 3 March [the paternal grandmother] told him to find another place to live before I got back from Australia.
I accept that the contention of the SCA that the couple looking for places to rent was indicative of her intention to return from Australia. The mother’s affidavit of 26 March 2010 goes on to describe the events of the night before and the early morning hours of the day she and the child departed New Zealand, 6 March 2010.
Where both parents have rights of care of a child (as in this case) the habitual residence may only be changed by agreement, acquiescence or court order: Re J (a Minor) [1990] 2 AC 562.
Here, the SCA contends that the child’s habitual residence was New Zealand and it remained so in spite of whatever thought the mother may have had from early February 2010 onward through to her refusal to return the child to New Zealand on 27 March 2010. The SCA relies upon the principle, which I accept, that where both parents have rights of care of a child (as in this case) the habitual residence may only be changed by agreement, acquiescence or court order: Re J (a Minor) [1990] 2 AC 562.
However, the mother contends that she never relinquished Australia as her habitual residence and that the habitual residence of the baby must follow her own. I am unable to accept either proposition.
Ease and economy of international travel and social security support to young parents make travel easy, particularly between Australia and New Zealand. There is a conspicuous absence of evidence in the mother’s case to the effect that anyone, such as family or friends, expected her to return prior to the birth of the child or at all. I accept that she did not turn her mind to the significance of the child being born for him or for herself but that does not preclude the child from being habitually resident in New Zealand. My impression is that people act consistently with their intentions. There may be competing interests and conflicts, self interest may, or may not carry the decision. However, the sum total of one’s deliberations or intentions will generally be reflected in one’s actions. This view necessarily permits of intentions that are not particularly well founded or carefully considered or wise but they are intentions nonetheless.
I acknowledge that the mother’s age and emotional maturity is a significant factor in this case but I reject the submission of the counsel for the mother that the mother is too young or too immature to have formed an intention to reside in New Zealand. The High Court’s reasoning in LK and Director-General, Department of Community Services[29] makes clear that habitual residence is not linked to the primary carer or passed down the maternal line.
[29] Supra at [34]
In coming to the conclusion that the child is habitually resident in New Zealand, I have considered the mother’s other contention that, as at 27 March 2010, the child was not habitually resident anywhere.
In SCA v Wattey[30], I decided that an 11 month old child was not habitually resident in the United Kingdom (where he was born) or Spain (from where he was removed) or anywhere else. My review of authorities in relation to habitual residence of children, can be read in light of the High Court’s decision in LK and Director-General, Department of Community Services[31]. My discussion[32] about commentary on the possible adverse consequences for a child who falls outside the purview of the 1980 Convention is relevant to this case. As Butler-Sloss LJ remarked in Re F (A Minor) (Child Abduction) (1992) 1 FLR 548 (at 556) that:-
[…] it is important for the successful operation of the Convention that a child should have, where possible, an habitual residence, otherwise he cannot be protected from abduction by a parent from a country where he was last residing. Paraphrasing [counsel’s] argument, we should not strain to find a lack of habitual residence, where on a broad canvas, the child has settled in a particular country.
[30] [2008] FamCA 1108
[31] Supra
[32] Ibid pp [113] to [115]
From this jurisdiction we have the oft quoted comments of Chief Justice Nicholson (as he then was) in Cooper v Casey (1995) FLC 92-575, at 81,696 that:-
As was pointed out during the course of argument in the present case, the making of a finding that a child has no habitual residence could easily operate to defeat the purpose of the Convention and leave children open to the possibility of repeated abductions by both parents.
I am satisfied that the child was habitually resident in New Zealand as at 27 March 2010. I am satisfied, to the required standard, that by late October or early November 2009, the mother had decided that she would remain in New Zealand for the foreseeable future. This is the period that the mother refers to herself as deciding to stay in New Zealand for the birth of the baby because the father “made me feel guilty about him not being at the birth”[33]. My impression is that, certainly from that point onwards, the mother stopped talking about returning to Australia for anything other than a holiday or a temporary stay. The child was born in December 2009. The mother deposes[34] that by January 2010, the maternal grandmother was aware that the mother was unhappy and was “concerned about my mental state” and suggested that the mother bring the child to Australia for four weeks for a family reunion. If the mother or her family intended for the mother to return to and stay in Australia permanently, this is the period at which I would expect to see reference to it.
[33] Mother’s affidavit sworn 26 March 2010 [18]
[34] Mother’s affidavit sworn 6 March 2010 [22] and [23]
After having considered all of the above matters, I am satisfied that the child was habitually resident in New Zealand as at 27 March 2010 and had been so since the time he was born. Having regard to the concessions as to the other pre-requisites to application of the Regulations, it follows that the mother’s retention of the child is wrongful within the meaning of reg. 16(1A). I will now turn to consider whether an exception to mandatory return applies.
Grave risk of harm
The mother contends that the return of the child to New Zealand is not required because to do so would expose him to a gave risk of psychological harm or otherwise place him in an intolerable situation within the meaning of reg.16(3)(b).
Regulation 16(3)(b) provides:
A Court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
…
(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; …
This provision essentially mirrors the provisions of Article 13(b) of the Convention which provides:-
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that … there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
It was conceded by the mother at the trial that, if an order is made for the child to return to New Zealand, she will accompany him and seek to remain his primary carer.
The appropriate interpretation of Regulation 16(3)(b) has been settled by the majority judgment of the High Court in the cases of DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services[35] where Gaudron, Gummow and Hayne JJ said:
[41][…]The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in ‘an intolerable situation’. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
[42]Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description ‘grave’. Leaving aside the reference to ‘intolerable situation’, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
[43]Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
[44][…]
[45]That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.[36]
[35] Supra
[36] Ibid at [41] to [45]
On the affidavit evidence of the mother and father and their non expert witnesses it appeared that the allegation of grave risk arose from the following:
a)the alleged violent behaviour by the father as against the mother;
b)the alleged conduct of the paternal grandmother as against the mother;
c)the likelihood that the mother will have nowhere to live were she to return to New Zealand and the associated effects that her isolation and lack of support would have on the child.
However, at the trial, the alleged harm was confined to the effect on the child of deterioration in the mother’s mental health for which the above matters have indirect relevance.
The mother’s mental health was the subject of the report of Dr K[37] and extensive cross-examination of him. I found Dr K to be a well qualified and impressive witness. In most respects I accept his assessment and the opinions on which he elaborated in cross-examination. I will deal with his evidence in some detail. I will make specific mention of the areas which I do not accept or accept with qualification.
[37] Report dated 20 May 2010 annexed to affidavit of Dr K sworn 21 May 2010
Dr K was asked by the Court how he came to the conclusion at page 8 of his report which said:
The history is indicative of [the mother] developing an adjustment disorder with mixed anxiety and depressed mood whilst in New Zealand.
Dr K stated that the mother was “able to give a clear picture of how her difficulties arose, and that they arose progressively…she was able to identify what were the triggers”. Dr K said that the mother presented “a believable, genuine picture of someone who has had difficulties under, for her at least, trying conditions”.
Dr K also gave evidence as to the mother’s emotional difficulties during her adolescence, including her anorexia nervosa. He stated he was not aware that she was hospitalised, although she lost “a substantial amount of weight” and that the illness was “connected with emotionality, some rebellion from her own family, and issues with control”. His opinion was that “it was likely that she was responding to some degree to her own parent's difficulties, and they subsequently separated soon after that”.
Dr K stated the mother was seeing a psychiatrist, although he did not know the psychiatrist’s name, for this illness and was prescribed Zoloft, anti-depressants, for a period of five months. Dr K’s evidence was that the mother could not recall the name of the psychiatrist, however it was his understanding that it was “a relatively brief psychotherapeutic exercise”.
Dr K stated that it is “relatively unusual” to prescribe Zoloft to adolescent girls due to concerns about side effects, including that it can “worsen the problems with appetite”. Dr K’s opinion was that:
…there must have been a depressive quality to it for her to be prescribed antidepressants for that period of time. It seems likely based on her picture, and certainly the way she has presented more recently, that the eating difficulties probably to some degree have come out of her own depression, so that she's become somewhat depressed at age 13 to 15 under the stress of the family, her own family, and then had difficulties with eating, that’s probably then got out of control…
Dr K was asked about the genuineness of the mother’s interview, to which he stated:
I've interviewed a variety of different people with that profile, your Honour, and obviously in immigration issues this is – it's a relevant factor. The difference is that they're indiscriminate about their symptom recall, so that they tend to oversubscribe to symptoms. When asked about symptoms, they will throw everything in. (at p.4)
Dr K elaborated that it is very common for people to “indicate that they have extremely high levels of distress when other people are not necessarily saying that's the case”. Dr K was of the belief that the mother was not attempting to build a “massive story of her psychological distress”. He found the mother to be able to communicate about her past emotional difficulties in a “historical way”. Dr K also stated he found that the way the mother spoke about her experience in New Zealand reflected that it was a confusing and troubling time for her, “she appeared to become confused, upset, anxious about what she was speaking about”.
Dr K agreed with the proposition that if the mother had wanted to “make something up” she would have fabricated “something more spectacular than she did”. Dr K said the mother was increasingly feeling like she was not coping “and doing a poor job with the child”. Dr K agreed that the mother had indicated words to the effect that “she wasn’t mentally there”. In her evidence, the mother said that she thought that she was caring for the child adequately.
When the Court asked about the effect of this mental state on the mother over the long term, Dr K said:
…either she would adapt and begin to cope better and develop supports over there or they would become worse. Certainly I think she’s not a young woman who in my view is extremely emotionally resourceful. She’s not a person who you would say can easily adapt to those sort of circumstances where she may feel somewhat isolated and I don’t necessarily think that – and I think, for her, in the sense of being a person with relatively simple goals and ideas about what she wants to do in her life and I’m not saying that disparagingly, it’s just that [she is]… quite focussed on her family and her community and I think in that sense, my overall feeling is that she would continue to have problems and probably if she did return would probably get depressed again (at p.5)
Dr K was asked about the maturity of the mother in terms of her ability to parent the child. Dr K stated that the mother is able to cope with caring for her child ostensibly, but that “in terms of emotional resources, she’s quite immature”. Dr K noted in this regard for example that the mother’s ability to deal with the father’s family was “relatively limited”. He further noted that:
Her ability to accept that she was there and she had to make the most of it and get herself out of her situation, deal with her partner and so on, is reasonably limited so I think there’s two sides. One is her ability to do what she wants to do and care for her child is probably fine in her current circumstances but I don’t see her as a particularly sophisticated person who could adapt very easily to those sort of stressful situations and in that sense you would probably again have to draw back on the period of her parents separation where in the lead up to that she coped quite poorly, I think, suggesting the depression. Whereas certainly a child who is more able to cope with that change may well have not got so depressed although that’s probably drawing a long bow too (at p.6)
Dr K agreed that the mother was assessed as being “not particularly mature for her years”. In this context, Dr K was asked as to whether there would be “an overlay of fragility” associated with having a young child. He stated that in an environment with some family support, young parents can do “relatively well” and their immaturity can actually make it easier as they are more comfortable. He stated he felt the mother was “relatively comfortable with the role of being a young parent” in Australia; she has her own accommodation and friends and family to assist her. Dr K said that in this sense, while on one level she is not as fragile a parent in her current circumstances, “as a person who’s relatively immature you put her in an environment where she doesn’t feel comfortable and I think that immaturity and fragility that we know that she has, will come out again”. (at p.7) I accept that evidence.
Dr K continued that he believed the mother would be “substantially” more vulnerable in New Zealand, given that she would be without her family, particularly her mother, and without the support of friends or knowing the resources available to her. He stated New Zealand would be difficult for her, given the conflict with the father’s family and her lack of friends and support. Dr K’s evidence in this respect was not shaken in cross-examination.
Dr K stated it was “doubtful” that the possibility of the maternal grandfather staying with the mother in New Zealand if she were ordered to return with the child would ameliorate the stress he believed the mother would endure. He further elaborated:
I think that what she described fairly clearly was a reasonably heavy dose of culture shock, as well as a sense of not being able to cope very well with her ex-partner’s family and I that she didn’t establish the supports that she needed to – or even any connections, really, over there in that period of time she was there. As well as that I do think, unfortunately, that there’s probably a difference with her father being around, in comparison to her mother. She’s very close to her mother. Her relationship with the mother is very good. (at p.8)
This aspect of Dr K’s evidence was not shaken in cross-examination.
In Armstrong v Evans [2000] NZFLR 984, Judge Doogue refused an application for the return of a three year old child to Australia. The mother alleged that the left behind parent had perpetrated domestic violence against her for 12 years, some of it in the presence f the child. Those allegations were denied. There was evidence from a registered psychologist to the effect that the mother exhibited psychological sequelae consistent with the abuse she alleged. Her Honour referred to the allegation of psychological harm as the “crux of the case”. Doogue J accepted that the mother suffered from post traumatic stress disorder occasioned by the violence of the left behind parent and that there was a possibility of suicide if she was forced to return to Australia. Particular difficulties arise when the grave risk or intolerable situation relied upon is a consequence of a prediction about the abducting parent’s reaction to a return to the country of habitual residence from whence she/he fled with the child. The following comments of her Honour, resonate with this case:-
[48] I must determine whether a return to Australia would expose the child to psychological harm or would otherwise place the child in an intolerable situation. I approach this issue mindful of the presumption in favour of the child’s return as a starting point.
[49] Counsel for the applicant cautioned the Court not to find the defence proven. He argued that this was a “standard type of Hague Convention application where violence was the trigger persuading the parent to abduct the child”. I accept violence is often the motivating factor. I accept too it is common in such applications. I further accept that some victims of violence have good coping mechanisms, some have no psychological sequelae following abuse, some have minimum coping skills and some none at all. The exercise for me, however, is to consider the position of this child and this respondent – not as to best interests, but as to the risk of psychological harm to this child or otherwise the placing of this child in an intolerable situation.
[50] It has to be said that this defence is very rarely made out. That reflects the very high standard of proof attaching to the defence. However, I remind myself of the fifth legal principle enunciated by Fisher J in S v S and it is appropriate that I restate it at this point:
Nevertheless the convention would not have included the s 13(1)(c) exception unless it were contemplated that in some exceptional cases it would be in the greater interests of the child that return should be refused.
There is an established line of authority against refusing to return a child merely because the parent, who wrongfully removed or retained the child out of the country of the child’s habitual residence in the first place, refuses to return. Those considerations do not apply here save to the extent that there is some useful discussion of the assessment of mental illness in the context of abducting parents who refuse to return and allege that the likely deterioration in their mental health will expose a child in their care to a grave risk of harm or otherwise place the child in an intolerable situation.
In Re C (A Minor)(Abduction)[49] the Court of Appeal comprising Lord Donaldson MR, Neill and Butler-Sloss LJJ allowed an appeal against a decision of Latey J to refuse to return a 6 year old Australian boy to Australia on the basis that his English born mother, for emotional reasons not fully expressed, refused to return to Australia. Lord Donaldson MR said:-
We also had to consider Art 13, with its reference to “psychological harm”. I would only add that in a situation in which it is necessary to consider operating the machinery of the Convention, some psychological harm to the child is inherent, whether the child is or is not returned. This is, I think, recognized by the words “or otherwise place the child in an intolerable situation” which cast considerable light on the severe degree of psychological harm which the Convention has in mind. It will be the concern of the court of the State to which the child is to be returned to minimize or eliminate this harm and, in the absence of compelling evidence to the contrary or evidence that it is beyond the powers of those courts in the circumstances of the case, the courts of this country should assume that this will be done. Save in an exceptional case, our concern, ie the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the other country, Australia in this case, can resume their normal role in relation to the child.
[49] [1989] 2 All ER 465
I accept that statement to be compatible with the law in Australia insofar as it refers to the period of time in which the potential harm accrues to be the period between return to the other contracting state and the courts in that country becoming seized of the matter.
In the matter of The Director General, Department of Families, Youth and Community Care and B[50] the Full Court of the Family Court, comprising Kay, Coleman and Barlow JJ, heard argument on whether, in the context of a non-returning abductor, the exception of grave risk of harm or intolerability ought to be confined to situations where the inability of an abductor to return to the state of habitual residence (to participate in legal proceedings) was brought about by the laws of the requesting state rather than by personal circumstances of the abductor, such as mental illness. Their Honours commented:-
47. […] where a very young baby was wrongfully removed or retained in circumstances that would otherwise lead to its return being ordered, if it was being breast-fed by its "abducting" mother and her personal circumstances genuinely precluded her return with the child (eg. her medical condition or perhaps even her incarceration), then the Reg 16(3)(b) exception might be made out. In Re G (Abduction: Psychological Harm) [1995] 1 FLR 64 Ewbank J declined to order the return of a child to the USA when the evidence demonstrated that a forced return of the mother (who would not part from the three very young children) carried with it a likelihood that she might become psychotic, and that such a serious deterioration in her health would adversely affect the children.
[50] [2000] FamCA 253; (2000) FLC 93-011; 26 FamLR 71
Re G(Abduction: Psychological Harm) (supra) was a case where Ewbank J twice determined the case of a respondent mother who asserted that the return of three children, being a 3 year old and 1 year old twins, would expose the children to risk of physical or psychological harm or otherwise place the children in an intolerable situation. The mother’s case was that her mental state was likely to deteriorate in the event that she returned to Texas with the children. Ewbank J[51] accepted that the mother was suffering from moderately severe reactive depression and he said in his report that if the mother were forced to return to the USA, her depression would be severely exacerbated. However, he considered that she was unable to establish that the children would suffer harm if they had to return to the matrimonial home in Texas under the conditions that were being offered at that time. The mother appealed. In the course of the appeal, she obtained leave to adduce fresh evidence of her psychiatric state as at the date of the appeal.
[51] Re G(Abduction: Psychological Harm) [1995] 1 FLR 64, at page 65
Ewbank J’s initial decision was overturned and the case was sent back for re-hearing. On the re-hearing, Ewbank J held that the Article 13(b) exception was made out and exercised his discretion to refuse to return the children to the United States. His Honour said the following of the court’s task:-
One is always concerned in a case of this court as to what extent the court is being manipulated by a litigant who is determined to get her own way and will use whatever manoeuvres are available to try to force the court into a particular form of action. If I thought for a moment that that was this case, I would not, of course, pay any attention to the evidence that I received from the litigant in question, but I have to say that having seen and heard the mother and seen and heard [the expert],I am satisfied that this is a case where Art 13 does apply and that I am not bound to send these children back to the USA, and taking into account all the circumstances of the case, I do not propose to make an order that these children should go back to the USA. In my view, the effect of an order returning the children to the USA would be that there would be a serious deterioration in the mother’s condition and the children would affected accordingly.
I note as apt the comments of Ewbank J about the difficulty that a court faces in assessing the case of litigants who, on one side, may be in a position to shape evidence to achieve their desired result as opposed to the other party whose role is, relatively speaking, more like a passenger or bystander. His Honour’s comments have equal relevance in this jurisdiction.
In the High Court decision JLM v NSW Department of Community Services[52] the majority judgment of Gaudron, Gummow and Hayne JJ (with Callinan J agreeing on this point and Kirby J dissenting), made clear that findings of psychiatric or physical disintegration of an abductor in the event of children being returned to their state of habitual residence can be sufficient to engage Regulation 16(3) and enliven a discretion not to return the children. The majority judgment recites that at first instance Rose J, who conducted the hearing on affidavit evidence and without cross-examination, had found the psychiatric evidence of the mother to be:-
“unchallenged”, “detailed”, “compelling” and “persuasive” [and that Rose J] had evidence, which he accepted, from a friend of the mother who had had several years experience in the mental health filed who expressed the opinion that “suicide is a real risk if [the child] is returned to Mexico[53]
[52] Supra
[53] Ibid at paragraph 76
In JLM v NSW Department of Community Services it was an undisputed fact that the mother’s suicide would cause great psychological harm to the child[54]. Of the fact that the risk of psychological harm emanated from the mother who had wrongfully retained the 3 year old child in Australia in the first place, their Honours said:-
To say that she is the originator of the source of the risk of harm appears to take no account of the fact that the mother is not in command of her situation and it betrays a complete lack of any understanding of the major depressive illness from which she suffers.
[54] above at paragraph 74
In Director-General, Department of Human Services and RSP[55] the Full Court of the Family Court, comprising Ellis, Finn and May JJ, upheld a decision of Warnick J. At first instance, Warnick J dismissed an application for an order that a two year old girl, who had been wrongfully retained by the mother in Australia, be returned to the United States of America. Warnick J accepted that the mother could not return to the United States. He rejected the mother’s argument that the father and/or the father’s family could not adequately care for the child. In relation to separation of the children from the mother, His Honour found:-
Though no doubt some distress for [the child] upon removal from the mother might be anticipated, I do not find that this gives rise to a grave risk of harm to her, or places her in an intolerable situation. The mother may well follow her to the USA.
[55] [2003] FamCA 623; (2003) FLC 93-152
However, there was evidence as to the likelihood of the mother taking her own life and his Honour found that there was a grave risk that if the two year old child was returned to the USA the mother would suicide and correspondingly the child was at grave risk of psychological harm. Warnick J was satisfied that the mother had a history of mental illness and a pre-existing neurological condition to do with malformation of part of her brain. Warnick J also commented on the difficult task of assessing evidence in cases where the abducting parent’s mental health or the implications thereof are the source of the grave risk of physical or psychological harm or intolerable situation.
80. I do not reach these findings without disquiet. Courts will understandably have a real concern about the disingenuous adoption of stances designed to achieve the purposes of abductors in resisting orders for the return of children. But the response to this concern cannot be to disregard evidence, but rather to scrutinise it with great care.
81. In this case there is a history of depression and mood changes in the mother. She demonstrated an intense need for the comfort and support of her family. She has suffered dramatic and no doubt traumatic health difficulties. She threatened suicide when cohabiting with the father.
82. Her consultations with Dr Klug are apparently for the purpose of treatment, not evidence gathering. His medical opinion of the risk is clear and unchallenged.[56]
[56] Supra, paragraph 15 of, In Director-General, Department of Human Services and RSP (2003) FLC 93-152
Dr K’s evidence, although more so under cross examination than in his written report, deals with the mother’s alleged vulnerability and psychological functioning. I accept Dr K’s evidence that the mother was a genuine historian and did not try to exaggerate her condition. Whereas the maternal grandmother expressed her previous fears that the mother would harm herself whilst in New Zealand, this was not part of the mother’s discussion with Dr K and not an aspect of her case.
There is no suggestion that she is currently suffering depression but Dr K’s unchallenged opinion is that the mother is likely to “decompensate” within a matter of days or weeks of having to return to New Zealand and regardless of whether she lives close by the father’s family or remotely from them. Dr K’s evidence, which I accept, is that the mother’s relapse is likely to be more severe than the depression which she experienced in December 2009 to March 2010.
The depression described by Dr K does seem less severe than the psychosis of the mother in Re G(Abduction: Psychological Harm) or the potential suicide of the mothers in JLM v NSW Department of Community Services and Director-General, Department of Human Services and RSP. However, the gravity pertains to the risk rather than to the harm or to the intolerable situation.
I largely accept Dr K’s evidence. I accept that the mother is genuine in her resolve to accompany the child in the event he is ordered to be returned to New Zealand and that she will do so in order to maintain her role as his primary care giver. I accept that the adverse consequences to the mother’s mental health will take hold and impact on the child as a result of them returning to New Zealand. That is, the immature and fragile aspects of her personality will come to the fore, she will withdraw into herself and become more emotional, she will cope poorly, likely develop an extreme depressive response to her predicament and, quite possibly, experience greater levels of depression than previously. The child will receive less than “optimum care” from the mother.
It is not a matter of the mother and the child returning to New Zealand and having a final hearing within two or three months. I accept that a final hearing will be between eight to fourteen months after the proceedings have been instituted (and they were not instituted at the time of this hearing). That is three times longer than the mother was in New Zealand for in the first place when, I am satisfied, she became mentally unwell.
I accept that Dr K’s long term prognosis, including the child developing behavioural difficulties into childhood and adolescence if his primary carer is depressed, is correct. However, I do not regard that prognosis as relevant for the purposes of this case because those risks are too remote from the return remedy provided for in the Regulations.
The most compelling features of this case, is the young age of the mother, her unchallenged pre-disposition to depression, her reasonable and genuine apprehension to returning to New Zealand where the father’s family have treated her with disregard and which is a place where she has absolutely no other ties or supports. I find Dr K’s evidence about the significance of the mother’s age to be very persuasive. Seemingly, if the mother had the benefit of another ten or fifteen years of life experience, the other aspects of her situation, including her vulnerable mental state, may be surmountable for her. The mother would be able to look back on previous life challenges and discern how to access supports to assist herself and the child. That is not the case here.
One aspect of Dr K’s evidence which I do not accept is his opinion that the mother necessarily draws a significant amount of support from her family of origin. That may be the case now, but it has not been the case previously. I accept that, as between the mother and her mother, the rifts and tensions of the mother’s adolescence may be overshadowed by her role as a new mother of the child and the struggle of these proceedings. However, my impression is that the support derived by the mother from her own family and family experiences may be more fragile and not as sustaining as Dr K opines. Consequently, I doubt that the mother draws much inner strength from that quarter which makes her and, through her, the child, even more vulnerable to disruption. That does not mean that the mother would be no worse off in New Zealand. My impression is that the mother is significantly less resilient and self reliant than one might expect a 19 year old single mother to be.
For the above reasons, I am satisfied that the return of the child to New Zealand would expose him to a grave risk of psychological harm or otherwise place him in an intolerable situation. As a consequence of the mother having made out her case under the exception, the court has a discretion not to return the child to New Zealand.
Exercise of discretion against mandatory return
The applicant SCA contended that I should not exercise the discretion against return. The mother contended that I should exercise it and thereby allow the child, now seven months old, to stay in Australia.
Turning to the exercise of the discretion, Kay J in State Central Authority and DB [2002] FamCA 804, His Honour, in my view, correctly summarised the relevant law in relation to the exercise of the discretion to refuse an order for return as follows:-
33.The existence of the Regulation 16(3) defence means that the Court may refuse to order the return of the child under the Convention. This raises the question of the exercise of a discretion. The Regulation offers no express terms as to how that discretion may be exercised. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in De L v Director-General, NSW Dept of Community Services (1996) 187 CLR 640; FLC 92-706; 20 Fam LR 390 at CLR 661; FLC 83,456; Fam LR 403:
“if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child's return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]’ enable it to be said that a particular consideration is extraneous [ Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J]. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.”
In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 which were:
“(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b)the likely outcome (in whichever forum) of the substantive proceedings;
(c)the consequences of the acquiescence;
(d)the situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.”
34.Her Ladyship said:
“56.As to (f), the policy of the Hague Convention undoubtedly weighs heavily in respect of the children's objections. In my view, expressed in Re HB (Abduction: Children's Objections) [1997] 1 FLR 392, it weighs particularly heavily in those cases where children come to visit a parent living here and wish to remain: unless their objections are very cogent indeed, they should return to their primary carer for the dispute about a change in primary care to be settled in their home country. It weighs rather less heavily when the children wish to remain with their primary carer, particularly where, as here, the child has had no contact with the other parent for such a long time…”
35.Arden LJ said of the exercise of discretion in the TB case that as the majority were sending the younger children back and that the mother would follow, notwithstanding the wishes of the elder child, the interests of the child dictated that she be forced back as well.
“107However K is entitled to separate exception under Article 13 by reason of the fact that she is able to express her wishes and objects to return. She is now fourteen and a half years old. … It is important that her wishes should be respected so far as possible but on the other hand since her brothers are to return, the court should consider whether it is right to respect those wishes in those circumstances. More importantly she is close to her brothers and her mother. She has been a source of strength to her mother in the past. Her mother says that at times she does not know how she could cope without K. In my judgment, the likelihood is that her mother will return to New Zealand with A and KI. In those circumstances, despite some dislocation in her education, it is in K's best interest to return also. In so concluding, I reach the same conclusion as Hale J (as she then was) reached on the facts of the case in Re: HB (Abduction: Children's Objections) [1997] l FLR 392, referred to with approval on appeal allowed on another point [1998] 1 FLR 422). Other factors include the fact that she has grown up in New Zealand and has the benefit of her mother's extended family there. Having considered those matters, in my view, in the exercise of discretion effect should not be given to K's wishes and she too should be ordered to return…”.
In HZ v State Central Authority [2006] FamCA 466, the Full Court comprising Kay, Coleman and Warnick JJ endorsed the above passage by Kay J in State Central Authority and DB as being the appropriate approach to be taken on the issue of the exercise of discretion to refuse to return a child to its country of habitual residence.
Comparative suitability of the forum to determine the child’s future in the substantive proceedings
New Zealand is a suitable forum.
The likely outcome of the substantive proceedings
This is not easy to answer and I do not presume to do so. The child is only seven months old. The mother may well be allowed to relocate to Australia if she made application to do so. That relocation may be on terms or delayed to permit the father adequate opportunity to re-settle here. Likewise, the importance of the child having a meaningful relationship with the father might be such that the mother is not permitted to relocate to Australia.
Dr K’s evidence was that it is unlikely that a meaningful relationship will develop between the father and the child unless they spend time together. Dr K’s view is that a relationship may be forged later in life where none existed early on. He stated:
I think it’s possible that there’s a relationship, and certainly people develop them, and I know they develop them, but it tends to happen at, really, the - in a way, most of the work gets done later on, as the child gets older. I don’t think it excludes the possibility that it can occur. It just means that everybody has to work at it, and much harder than before. (at p.14)
I do not see how there can be a meaningful relationship between the child and the father unless there is regular and frequent time between them. It is difficult enough for a relationship to be established when separated parents of a very young child live in close proximity. However, like Dr K’s long term prognosis about the impact of the child of the mother’s mental health problems, this is not a matter which is directly relevant to the disposition of this case. The 1980 Convention provides a prompt return remedy so that courts in the state of habitual residence can determine parenting matters in relation to the child. The remedy is not intended to be used to develop relationships it seeks to protect. Whether it is this Court or the courts of New Zealand which ultimately determines parenting arrangements for the child, there will be an evaluation of the benefit to the child of having a meaningful relation with the father as well as the parenting capacity of the mother and the father.
I am satisfied that the outcome of the proceedings, wherever they are conducted, will be a determination arrived at with the child’s interests being the paramount consideration.
Consequences of acquiescence
Acquiescence on the part of the father to the child being retained in Australia was not raised by any party as an exception to mandatory return.
The situation awaiting the respondent mother and children if they return
There is no suggestion of any criminal charges or civil penalties which would await the mother in the event of her return.
In the High Court cases of DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) 206 CLR 401, Gaudron, Gummow and Hayne JJ said:
“[40] […]. if, on the evidence, one of the [..] conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
The mother sought conditions precedent to any ordered return[57]. This did not represent a concession by the mother that a return should or would be ordered or that, if the conditions were met, the grave risk would be ameliorated. The conditions were advanced in response to a direction from the Court that they be particularised in sufficient time for the father to be able to respond through the SCA. In the event, the father considered the conditions over a luncheon adjournment and responded in the course of his cross examination. The conditions were:-
a)That the child be returned to New Zealand within 30 days of an order to the effect. The SCA raised no objection to this course;
b)That the child live with the mother in New Zealand. The father said that this was a matter that “need to be sorted out”. It was put, by way of clarification, that the child should live with the mother until such time as a court in New Zealand ordered otherwise. The father said that he was unable to answer;
c)That the father have supervised contact with the child, with the supervisor to be provided by the New Zealand Central Authority. The father refused to respond. At a mention of this matter on 14 May 2010, the lawyer for the mother stated that the mother wanted the SCA to provide a supervisor. She was advised, very clearly, that this was a matter well outside the function of the Central Authority in either country;
d)That a domestic violence order (or equivalent) be made in New Zealand against the father for the protection of the mother and the child. I disallowed any questioning of the father on this issue. Counsel for the mother was not in a position to satisfy me that an order could be obtained even f the father agreed to it or the basis upon which an order for the protection of the child was justified. Based on past experience of Hague matters between Australia and New Zealand, I have doubts as to whether relief, which is predicated on an immediate apprehension of harm, can be obtained when the person(s) sought to be protected is not even in the same country. Furthermore, whether an application can be made by the mother from outside New Zealand or if the father has standing to seek an order against himself even if he was minded to do so. The lawyer for the mother was apprised of all of these potential difficulties at the mention on 14 May 2010;
e)That the proceedings in New Zealand be expedited. The SCA had no objection to this occurring and, arising out of this discussion, requested that indications be sought from New Zealand, via the Hague Network of Judges, as to likely time frames;
f)That the State Central Authority in New Zealand arrange accommodation for the Mother and the child in New Zealand until the proceedings are finalised. Save for in exceptional circumstances relating to the security of a child, the Central Authority is not responsible for arranging accommodation. The father said that “I will help her out with getting an apartment and pay $150.” He was not specific as to whether the $150 would be paid regularly; and
g)That the father provide a cash payment to the Mother in the sum of $500 per week to cover living expenses for the Mother and the child. The father’s evidence was that he had savings, accumulated partially when the mother was in New Zealand, of $2,500. He gave evidence that he earns $450 to $500 after taxation. He pays board to his parents of $80 per week. His car is fully paid for. He often eats at work. His recurrent expenses are petrol and cigarettes. Clearly the father cannot afford $500 per week. Even if he could afford payments at that level, I would not order them for anything other than the period before which I was satisfied that the court in New Zealand would become seized of the matter. I have previously discussed the inappropriateness of a court imposing conditions on a return order which encroach on matters which are properly the province of the contracting state of habitual residence (see SCA v Daker [2008] FamCA 1271 at [70] to[87]). In the circumstances, I would favour a lump sum payment accompanied by details of what it was intended to cover but then left to the returning parent to manage.
[57] Exhibit “M3” Mother’s Case Outline p11
There is no doubt that New Zealand has a justice system equivalent to our own. It also has a social welfare system like ours but, like ours, it can only offer limited financial support. The evidence about social security entitlements or government funds was not clear. The mother’s eligibility for social welfare payments is not certain. My impression is that life would be difficult financially and socially which will compound what Dr K identified as her vulnerability to depression.
As Doogue J identified in Armstrong v Evans[58] the return to the country with which previous depression is associated is a return to the traumatic environment. Doogue J makes the following point which resonates with the facts of this case (although there was no evidence in his case about suicidality):-
Likewise I am satisfied the legal system [in Australia] could regulate the contact between the parties and the parties and the child. The difference here is that the risk I am concerned about is not capable of being legislated against. Court orders do not regulate against a person’s inability to cope and potential suicidality. Mental Health systems and the regulation of mental illness by compulsory order similarly cannot eliminate such risk. They may relieve it but no health professional would make assurances that it could be eliminated.
[58] Supra [53]
The anticipated emotional effect upon the child of an immediate return
I accept Dr K’s evidence to the effect that the mother will become depressed within days or weeks of her return. I am satisfied that it is more likely to be days rather than weeks because some of the impact of the decision will be immediate.
I have discussed earlier in these reasons, at paragraphs 188, 191 and 193, the harm and/or intolerable situation that the child will be placed in if he is ordered to be returned to New Zealand in the care of the mother. I have considered whether the risk of that harm would be less grave if the child’s return was delayed until it was necessary for him to be within the jurisdiction of New Zealand for parenting matters to be determined.
Dr K agreed that a delayed return would “probably have less impact” on the mother. When asked if he thought the mother could travel to New Zealand for the purposes of an assessment in any court proceedings, Dr K said “yes, probably…I think it would create enormous anxiety for her and it’s a bit unpredictable, I think, in that sense, but I think, probably, anything bar staying in Australia is precarious”.[59]
[59] Transcript at p.13
Counsel for the mother queried whether, if the child and mother returned to New Zealand for a few days for preparation of a family report or social science assessment, the mother could be sure that she would be permitted to bring the child back to Australia pending the trial. The 1996 Convention on Child Protection[60] is not in operation between New Zealand and Australia. Australia is a party but New Zealand is yet to ratify or accede. A case such as this would benefit immensely from the provisions of the 1996 Convention. Nevertheless, I do not doubt that the mother would be permitted to leave again if a regime is in place which leads to a judicial determination in New Zealand in a timely manner.
[60] Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children
A hearing in New Zealand would be between eight and fourteen months away. I accept Dr K’s evidence that the mother is substantially more vulnerable in New Zealand than in Australia. However, even if the mother could spend most of pre-trial time in Australia, with the support of her family, her daily care of the child would be compromised for that time although compromised to a lesser degree. That is not an acceptable outcome for the child and is a factor which informs the exercise of my discretion not to return the child to New Zealand on this application.
Counsel for the SCA submitted that the mother will be anxious, vulnerable and depressed whilst she awaits the determination by this court, in Australia, of parenting matters. The mother’s proceedings are underway. Even with priority, a less adversarial trial date will not be allocated for a month or so or be completed, if a judicial determination is required, for some months after that. If no priority is sought or granted, I estimate, the process could take 12 months. I cannot accept that the mother will approach a trial in Australia with the same degree of trepidation as she would have on returning to New Zealand for a trial there. Our legal systems are very similar. I would be surprised if the same result would not follow in both jurisdictions on whatever evidence is ultimately adduced. However, that is an assessment after many years of experience in this jurisdiction and it is not the likely mindset of this young mother. A return to New Zealand for any purpose will impact on the mother, and the child, just as much if not more than her depressive episode prior to March this year.
I find that a postponement of the child’s return will not ameliorate the risk of harm to an extent that it is tolerable for the mother and, through her, for the child.
The extent to which the purpose and underlying philosophy of the Hague Convention would be frustrated if a return order were refused
Leaving to one side the parts of the 1980 Convention which deal with rights of access, the philosophy of the 1980 Convention is to protect children from the harmful effects of wrongful removal or retention across international borders by depriving the abductor’s actions of any practical or juridical consequences. It is not the philosophy of the 1980 Convention to capture all abductions. The concept of wrongfulness defines the children and the relationships which the 1980 Convention is intended to protect. Finally, only if one or more of the exceptions to mandatory return apply does the Court have discretion to not return the children. It is only in the exercise of that discretion that the best interests principles have any bearing. That is how I approach this case.
Dealing with the particular circumstances of this child, I am satisfied that to return the child to New Zealand now or in time for a hearing at a later date will expose him to grave risk of harm or otherwise place him in an intolerable situation. I am not satisfied that there are any conditions which can be imposed which will ameliorate the gravity of the risk.
I am mindful, however, of the significance of the 1980 Convention to children generally. As Fisher J said in S v S [1999] 3 NZLR 513 at p519:-
Underlying the presumption of return is the Convention premise that the interests of the children are of paramount importance. In giving effect to that premise it will usually be in the interests of particular abducted children that they be returned. That is the Convention acting remedially. But it would be easy to overlook its equally important normative role. There is the future of other children to consider. Their interests will be promoted by demonstrating to potential abductors that there is no future in inter-state abductions. A firm attitude to the return of children, in other words, discourage those parents who might otherwise be tempted to contemplate unilateral removal and as Judge Ryan recently added in Secretary of Justice, ex-parte Speechley v Reti (District Court, Kaikohe FP 027/113/98, 12 March 1998) at p8, such an approach also addresses the inhibitions there might otherwise be over allowing children to visit a Convention country on a voluntary basis. In New Zealand’s case a firm implementation of the Convention is an assurance to overseas custodial parents that it is safe to allow their children to come here for access and other temporary purposes.
Taking the above matters into account, I am satisfied that it is appropriate to exercise my discretion to refuse to return the child to New Zealand.
Conclusion
I am satisfied that the child was wrongfully retained by the mother in Australia on 27 March 2010. However, I am satisfied that the return of the child to New Zealand under prevailing conditions including the mother’s vulnerability to depression, would expose him to a grave risk of psychological harm or otherwise place him in an intolerable situation. I exercise my discretion to permit the child to remain in Australia.
I anticipate that this Registry of the Court will be in touch with the parents in relation to the re-listing of the mother’s parenting application filed 26 March 2010. It has been served on the father and it was stayed only until the determination of this application. The orders made on 23 March 2010, to safeguard the whereabouts of the child pending the determination of this case will be discharged. That means that there is no watch list order in place, the mother can collect the child’s passport and there are no restrictions on where the child is to reside.
I am comfortable with the outcome of the application as far as the Regulations are concerned. I have doubts, however, as to whether it is the optimal outcome for the family. There is so little difference between our legal systems and social welfare systems. Air travel is relatively affordable. New Zealand is in every sense our close neighbour amongst the contracting states under the 1980 Convention. It seems to me that a mediation of all parenting issues in Australia followed by an expedited hearing in New Zealand, which is the natural forum for this case, could have served the family better.
I certify that the preceding two hundred and twenty one (221) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 23 June 2010
Notation:
The day after judgment was delivered a very comprehensive report was received from Judge Brown in New Zealand as to the disposition of the matter referred to in pars 19 and 20 of the above reasons. The information had been anonymised and was distributed to the practitioners for their information notwithstanding that these proceedings were finalised.
Associate:
Date: 25 June 2010
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