State Central Authority, Secretary, Department of Human Services and Murphy

[2013] FamCA 886

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY, SECRETARY, DEPARTMENT OF HUMAN SERVICES & MURPHY [2013] FamCA 886

FAMILY LAW – CHILD ABDUCTION – Hague Convention – where the mother removed the child from New Zealand to Australia – the father has rights of custody in New Zealand – where the habitual residence of the child is New Zealand, a convention country - whether the child’s removal to Australia was wrongful – the mother is pregnant with another child (expected to be born in December 2013) – the mother consents to return with the child to New Zealand 30 days after the birth of her new baby – unopposed orders made for the return of the child in the company of the mother to New Zealand 30 days after the birth of the mother’s new baby.

Family Law (Child Abduction Convention) Regulations 1986 (Cth): rr. 2, 16, 16(1A), 16(3), 16(5).

APPLICANT: State Central Authority, Secretary, Department of Human Services

RESPONDENT: Ms Murphy

FILE NUMBER: MLC 7324 of 2013

DATE DELIVERED: 30 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 30 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wilson

SOLICITOR FOR THE APPLICANT: Department of Human Services

COUNSEL FOR THE RESPONDENT: Ms Mendes Da Costa

SOLICITOR FOR THE RESPONDENT: Wightons Lawyers

Orders

1. The child, B, born … 2011 (“the child”) be returned to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) 30 days after the Respondent gives birth to the child with which she is currently pregnant (child expected December 2013).

2. The child is to be accompanied to New Zealand by the Respondent.  In the event that the Respondent is unable to accompany the child to New Zealand in accordance with paragraph 1 of these orders, the Respondent will provide the Applicant and the father (Mr C) with a medical certificate outlining the reasons for her inability to travel.  The Respondent will then accompany the child to New Zealand 30 days after any required hospitalisation or upon the recommendation of her treating medical practitioner.

3. The Respondent is to inform the father that she has given birth to her child (expected December 2013) within 24 hours of birth.

4. The Respondent be responsible for the purchase of any and all tickets to enable the child’s return to New Zealand and provide the Applicant with a copy of the e-ticket or itinerary of the flight at least seven days prior to the intended departure.

5. Upon receipt of the e-ticket or itinerary referred to in paragraph 4 of these orders, the Applicant provide a copy of the same and a sealed copy of these orders to the Marshal of the Family Court of Australia and the Australian Federal Police.

6. Paragraph 6 of the amended orders made on 2 September 2013 be and is hereby discharged and that the Respondent or her nominee authorised in writing be permitted to collect the child’s passport immediately upon receipt of a sealed copy of this order.

7. Immediately prior to the child’s return to New Zealand in accordance with this order, paragraphs 4 and 5 of the amended orders made on 2 September 2013 be discharged and the Australian Federal Police remove the child’s name from the Airport Watch List.

8. Liberty is reserved to the parties to apply urgently in relation to the implementation of this order.

9. All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A.The Respondent does not oppose the making of this order.

B.The Respondent asserts that she believed that the father consented to the child being removed from New Zealand to Australia on 1 July 2013.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7324 of 2013

State Central Authority, 
Secretary, Department of Human Services

Applicant

And

Ms Murphy

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. The State Central Authority (“the applicant”) seeks the return of the child, B born in 2011 (“the child”), to New Zealand pursuant to the provisions of the Family Law Child Abduction Convention Regulations 1986 (Cth) (“the Regulations”). The Regulations give effect to Australia’s obligations under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Convention”).

2. The father, Mr C, made the request for return of the child.[1]  Mr C is the biological father of the child and is named as the child’s father on the birth certificate.  The father was born in Country E and is a citizen of New Zealand.  He resides in New Zealand, but was present in Court for the hearing and was accompanied by his new partner.

   [1] Regulation 2 of Family Law Child Abduction Convention Regulations 1986 (Cth).

3. Ms Murphy, the mother of the child, was born in New Zealand and is a New Zealand resident.  She is currently expecting a child in December 2013 from her new relationship.  The father of her unborn child is also currently residing in Australia.

4. The mother travelled to Australia with the child on 1 July 2013 and has been residing with her new partner in the home of her sister in D Town.  She had previously been living with the child in New Zealand with her parents.  Her new partner is the brother of the child’s father. 

5. The mother and her new partner were originally present in Court for the hearing.  The mother became unwell during the course of the day and left the Court precinct but had provided instructions to and was represented by counsel.  

6. Prior to her leaving the Court, the mother confirmed that she intends to return to New Zealand after the birth of her baby with the child B and her new baby. 

7. The mother does not oppose the application but has requested that it be noted that she believed the father consented to the child being removed from New Zealand to Australia on 1 July 2013. 

8. With the mother’s consent through her counsel, I proceeded to provide reasons and make the orders in her absence. 

Background

1. The child’s mother and father were residing in a de facto relationship at the time of the child’s birth and were resident in New Zealand.  They subsequently separated in February or March of 2012. 

2. On 12 April 2012, upon application by the father, an order was made in New Zealand preventing the removal of the child from New Zealand.  This application was not opposed by the mother.  During this time and by agreement between the parties, the child was spending time with the father on average once a week varying in time from one hour to overnight. 

3. On 12 September 2012, an application was filed in the Family Court in Manukau, New Zealand, for parenting orders between the parties.  As a result of this application, the mother and father participated in counselling with a court counsellor. 

4. A final parenting order was made in New Zealand on 19 April 2013 which provided for the father to have regular contact with the child.  The mother was granted day-to-day care of the child.

5. The order preventing the removal of the child from New Zealand was discharged by agreement to allow for the mother to take the child to Australia on 15 September 2012 to celebrate a family birthday.  Additionally, the mother travelled to Australia in February 2013 to visit her family and also travelled with her father to Australia for the period 19 May 2013 to 2 June 2013. 

6. The mother deposes that upon her return to New Zealand with the child in June 2013 the father continued to spend time with the child in accordance with the parenting orders. 

7. The mother purchased a one-way flight from Auckland to Australia and travelled to Australia on 1 July 2013 with the child.  The father did not consent to the child being removed to Australia and did not acquiesce to the child being retained in Australia. 

8. On 28 August 2013, a Form 2 application under the Regulations for the return of the child to New Zealand was filed by the applicant in this Court.

9. The application came before the Court on 2 September 2013 where I made orders that procedural orders including an injunction preventing the removal of the child from his current residential address in Victoria or from Australia.  The mother was required to lodge the child’s passport with the Registrar of the Family Court at Melbourne and was restrained from applying for any other passport.  The name of the child was ordered to be placed on the Airport Watch List and a copy of the orders provided to the Marshal of the Family Court of Australia, the Commissioner of the Australian Federal Police and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.

10. At a further hearing on 9 September 2013, the mother appeared at Court unrepresented and she was given further time to file a response to the application and any affidavit on which she intended to rely. 

11. On 25 September 2013 the mother was represented by counsel and given further time to file additional affidavit material and a response to the application. 

12. On 22 October 2013, where the mother was represented by counsel, procedural orders were made and it was noted by the Court that the parents had agreed to attend mediation in Melbourne at the Family Court of Australia on 25 October 2013.

13. The mediation was unsuccessful but traversed issues and practical circumstances which would arise if the Court ordered the return of the child to New Zealand. 

14. The application was listed for final hearing today.

15. Further affidavit material was filed before me today by the applicant.

16. Counsel for the mother indicated to the Court today that the mother now does not oppose the application for the return of the child to New Zealand.  I am satisfied that the mother has had legal advice about her decision not to oppose the application. 

Relevant legislation

1. Under regulation 16 of the Regulations, it is mandatory for the Court to make an order for the return of a child if the application is made within one year of the child’s removal and the responsible Central Authority satisfies the Court that the removal or retention was wrongful.

2. The obligation to make a return order is subject to sub-regulation 16(3) of the Regulations which sets out the circumstances in which the Court has discretion to refuse to make an order.

3. Under sub-regulation 16(1A) of the Regulations a child’s removal to Australia is wrongful if a number of matters are established by the applicant.

4. I am satisfied on the balance of probabilities that the child’s removal in this case was wrongful and I am satisfied on the balance of probabilities that:

   ·    the child is under 16 years of age; and

   ·    the child habitually resided in a convention country, being New Zealand, immediately before his removal to Australia; and

   ·    the father seeking the child’s return had rights of custody in relation to the child under the law of the country under which the child habitually resided immediately before the child’s removal from Australia; and

   ·    the child’s removal to Australia is in breach of those rights of custody; and

   ·    at the time of the child’s removal, the father was actually exercising the rights of custody or would have exercised those rights if the child had not been removed. 

5. The onus of proof is on the applicant and the standard of proof is on the balance of probabilities.  I am satisfied that the requirements of sub-regulation 16(1A) have been proved.

6. The mother does not now seek to establish under sub-regulation 16(3) that one of those circumstances exists upon which to found a discretion in the Court to consider refusing to make an order for the return of the child. 

7. It is noted that even if the Court were satisfied that one of those circumstances were established by the mother, the Court is not precluded from making a return order for the child under sub-regulation 16(5). 

8. I am also satisfied of the threshold point being that the application has been made within one year after the child’s removal.[2] 

   [2] Regulation 16 of Family Law Child Abduction Convention Regulations 1986 (Cth).

9. Given all the circumstances, I am satisfied that the mother does not oppose the application and has had legal advice about her decision.

10. Questions as to whether the child objects to being returned are not relevant in this case because of the age of the child, who is not yet two.

11. I am satisfied in all the circumstances that it is appropriate to make the orders proposed by the applicant.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 30 October 2013.

Associate:

Date:  14 November 2013 

ANNEXURE 1

The applicant relied upon the following material:

• Affidavit of Leng Phang, managing principal solicitor, Legal Services Branch, Department of Human Services sworn 28 August 2013;

• Affidavit of the father sworn 12 September 2012;

• Affidavit of the father sworn 6 August 2013;

• Affidavit of the father sworn 8 October 2013;

• Affidavit of Eva Accornero, solicitor, Department of Human Services sworn 22 October 2013;

• Affidavit of Eva Accornero, solicitor, Department of Human Services sworn 29 October 2013; and

• Judgment of DA Burns J of 19 April 2013, New Zealand.

The respondent filed the following material:

• Affidavit of mother sworn 23 September 2013;

• Affidavit of Damandeep Kaur Singh, barrister, New Zealand sworn 1 October 2013.

• Affidavit of Christine Margaret Helen Murphy, maternal grandmother, sworn 3 October 2013; and