Wenceslas & Director-General, Department of Community Services
[2007] FamCA 398
•30 April 2007
FAMILY COURT OF AUSTRALIA
| WENCESLAS & DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES | [2007] FamCA 398 |
| FAMILY LAW – APPEAL FROM DECISION OF FAMILY COURT JUDGE – CHILD ABDUCTION – Hague Convention – Child brought to Australia from New Zealand – Whether child’s removal to Australia was wrongful. FAMILY LAW - CHILD ABDUCTION – Hague Convention – Rights of Custody – Whether necessary to have a right to determine the child’s place of residence – Divergence of earlier decisions – Guardianship under Care of Children Act 2004 (NZ) would constitute rights of custody – Whether mother living with the father as a de facto partner at the time the child was born – Evidence justified finding of de facto relationship at child’s birth – Father had rights of custody – New Zealand legislation prohibited removal of child from New Zealand without the leave of a New Zealand Court. FAMILY LAW – CHILD ABDUCTION – Hague Convention – Habitual residence – Whether a child’s habitual residence may change before the child has left the place of residence – Must be a departure from the place of residence. FAMILY LAW – CHILD ABDUCTION – Hague Convention – Consent – Distinction between consent and acquiescence Consent may be inferred from conduct – Consent not established – Appeal dismissed. |
Care of Children Act 2004 (NZ), ss 3(1), 2, 15, 16, 17, 18, 80
Evidence and Procedure (New Zealand) Act 1994, ss 40, 46
| Family Law Act 1975 (Cth), s 111B |
Family Law (Child Abduction Convention) Regulations 1986, regs 2(2), 4(2), 16(1), 16(1A), 16(3), 29(5)
Guardianship Amendment Act 1991 (NZ), s 2 and s 4
Interpretation Act 1999 (NZ), s 29A
McCall and McCall; State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC 92-551
Re D(a child) (abduction: custody rights) [2007] 1 All ER 783
Re B (A Minor) (Abduction) [1994] 2 FLR 249
Dellabarca v Christie [1999] 2 NZLR 548
Gross v Boda [1995] NZFLR 49
In re H (Minors) (Abduction: Acquiescence) [1998] AC 72
Police Commissioner of South Australia v Temple (1993) FLC 92-365
State Central Authority v Ayob (1997) FLC 92-746
Secretary, Attorney-General’s Department v TS (2001) FLC 93-063
C v C (Abduction: Rights of Custody) [1989] 2 All ER 465
Jiang and Director-General Department of Community Services [2003] FamCA 929
S v H (Abduction: Access Rights) [1998] Fam 49
Thomson v Thomson (1994) 6 R.F.L. (4th) 290
DS v VW (1996) R.F.L. (4th) 341
Chief Executive of the Department for Courts v Phelps [2000] 1 NZLR 168
Anderson v Paterson [2002] NZFLR 641
Hunter v Murrow [2005] 2 FLR 1119
Re V-B (Abduction: Custody Rights) [1999] 2 FLR 192
Resina and Resina (unreported, Family Court of Australia, Barblett ACJ, Fogarty and Anderson JJ, 22 May 1991
Director-General, Dept of Families, Youth and Community Care v Hobbs (2000) FLC 93-007
Brooke v Director General, Department of Community Services (2002) FLC 93-109
DW v Director-General, Department of Child Safety (2006) 34 Fam LR 656
In re J (a Minor)(Abduction: Custody Rights) [1990] 2 AC 562
Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 at 995
Re M (Abduction: Habitual Residence) [1996] 1 FLR 887
Friedrich v Friedrich, 983 F.2d 1396 (6th Cir. 1993)
Cooper v Casey (1995) FLC 92-575
Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171
Department of Health and Community Services, State Central Authority v Casse (1995) FLC 92-629
Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716
Director General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785
Re W (Abduction: Procedure) [1995] 1 FLR 878
Re C (Abduction: Consent) [1996] 1 FLR 414
Re K (Abduction: Consent) [1997] 2 FLR 212
T v T (Abduction: Consent) [1999] 2 FLR 912
R v R [2006] IESC 7
| APPELLANT: | WENCESLAS |
| RESPONDENT: | DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES |
| FILE NUMBER: | SYF | 4027 | of | 2006 |
| APPEAL NUMBER: | EA | 137 | of | 2006 |
| DATE DELIVERED: | 30 April 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | FINN, MAY and THACKRAY JJ |
| HEARING DATE: | 22 FEBRUARY 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 December 2006 |
| LOWER COURT MNC: | [2006] FamCA 1493 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | MR LE |
| SOLICITOR FOR THE APPELLANT: | LE VACCARO LAWYERS |
| COUNSEL FOR THE RESPONDENT: | MR TOCKAR |
| SOLICITOR FOR THE RESPONDENT: | DOCS LEGAL SERVICES DEPARTMENT |
Orders
(1)That the appeal be dismissed.
(2)That each party pay their own costs of the appeal.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Wenceslas and Director-General, Department of Community Services.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 137 of 2006
File Number: SYF 4027 of 2006
| WENCESLAS |
Appellant
And
| DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES |
Respondent
REASONS FOR JUDGMENT
FINN J
Introduction and background
This is an appeal by the mother of a ten year old child against orders made by Steele J on 19 December 2006 requiring the child’s return to New Zealand. The orders were made pursuant to the Family Law (Child Abduction Convention) Regulations 1986 and on the application of the Director-General of the New South Wales Department of Community Services as the State Central Authority under the Regulations.
The Regulations are made under s 111B of the Family Law Act 1975 and give effect to Australia’s obligations under the Hague Convention on the Civil Aspects of International Child Abduction.
The mother and the father of the child had never married and it seems clear have not lived together since the child was a very young baby. It also seems clear that over the ten years of the child’s life, he has lived primarily with his mother, but he has had extensive contact with his father.
There have been a number of orders made by New Zealand courts over the years relating to the parenting and overseas travel arrangements for the child. However the only order which was in operation when the mother and child left New Zealand and came to Australia on 15 September 2006 was the following order made by consent on 4 December 2000:
The custody access order dated 10/6/99 regarding [the child] is discharged with the following orders to replace it:
56. [The child] will be in his father’s care every second weekend (beginning 1-3 December 2000) 5:00pm Friday to 5:00pm Sunday.
57. [The child] will be in his father’s care half the school holidays with the Christmas holiday period he is with his father between 4-25 January.
58. At all other times [the child] will be in his mother’s care.
59. Father will provide transport collecting him from his mother’s home at 5:00pm, and returning him at 5:00pm.
60. Weekend access is suspended during the school holiday periods (access weekend to recommence 2-4 February 2001).
As already mentioned, the mother and child left New Zealand and came to Australia on 15 September 2006.
On or about 3 October 2006 the New Zealand Central Authority made a request on behalf of the father to the Australian Central Authority for the return of the child to New Zealand pursuant to the Convention.
In light of that request, the New South Wales State Central Authority filed an application in the Sydney Registry of this Court on 11 October 2006 seeking an order under the Regulations for the return of the child to New Zealand. Included in the documents filed in support of that application were an affidavit from the father sworn on 3 October 2006 and also an affidavit sworn on 2 October 2006 from the father’s solicitor, Ms M, a family law practitioner of twenty years experience, providing evidence concerning New Zealand law in relation to guardianship and custody.
On 14 November 2006 the mother filed an affidavit. On 29 November 2006 an officer of the State Central Authority filed an affidavit annexing a number of further affidavits including a further affidavit from the father sworn 28 November 2006 responding to the mother’s affidavit, and a further affidavit from the father’s solicitor, Ms M. On 15 December 2006 a further affidavit from the mother was filed, together with an affidavit from a friend of the mother, Ms G.
The application for the return of the child was heard by Steele J on 18 December 2006. On the same day his Honour delivered an ex-tempore judgment and made the orders for the return of the child to New Zealand which are the subject of this appeal.
The issues before the trial judge
His Honour’s determination fell to be made under reg 16 of the Regulations which relevantly for present purposes provides:
16(1) If:
(a) an application is made to a court under subregulation 14 (1) for an order for the return of a child who has been removed to, or retained in, Australia; and
(b) the application is made within one year of the child’s removal or retention; and
(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
16(1A) For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b) the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c) the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d) the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e) at the time of the child’s removal or retention, the person, institution or other body:
(i) was actually exercising the rights of custody (either jointly or alone); or
(ii) would have exercised those rights if the child had not been removed or retained.
…
16 (3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child’s return:
(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) each of the following applies:
(i) the child objects to being returned;
(ii) the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
…
The concept of a “wrongful” removal or retention of a child which appears in reg 16(1)(c) is explained in subreg 2(2) in the following way:
The removal or retention of a child is wrongful in the circumstances mentioned in Article 3 of the Convention.
Article 3 of the Convention relevantly provides:
The removal or the retention of a child is to be considered wrongful where–
a.it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b.at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The expression “rights of custody” which appears in reg 16 is defined in reg 4 in the following terms:
4(1) For the purposes of these regulations, a person, an institution or another body has rights of custody in relation to a child, if:
(a) the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b) rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in the convention country in which the child habitually resided immediately before his or her removal or retention.
4(2) For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
4(3) For the purposes of this regulation, rights of custody may arise:
(a) by operation of law; or
(b) by reason of a judicial or administrative decision; or
(c) by reason of an agreement having legal effect under a law in force in Australia or a convention country.
As Steele J recorded in paragraph 5 of his ex-tempore reasons, the mother resisted the making of the orders for the return of the child on the following basis:
57.The Father did not at the time the Child was removed from New Zealand have “rights of custody” within the meaning of Regulation 4 so as to provide the requisite standing to bring an application pursuant to Regulation 14.
58.Even if the Father had “rights of custody” sufficient to provide standing, then the removal was not wrongful because New Zealand was not [the child’s] country of habitual residence as a consequence of the Mother having made a unilateral decision on the day prior to leaving New Zealand to abandon New Zealand as a place of residence with no intention of returning.
59.The Father, by consenting to an order in the New Zealand Family Court in Waitakere on 27 June 2005, which had the effect of discharging an order precluding the Child’s removal from New Zealand, acquiesced in the Child being removed to and retained in Australia so that the Court should in the exercise of its discretion refuse to order the return of the Child to New Zealand (Regulation 16(3)(a)(i)).
60.Even if the Child was wrongfully removed from New Zealand and has been wrongfully retained in Australia, then the Court should exercise its discretion against ordering the return of the Child because there is a grave risk that the return of the Child would expose the Child to physical or psychological harm or otherwise place the Child in an intolerable situation (Regulation 16(3)(b)).
61.The Child objects to being returned and the Child’s objection shows a strength of feeling beyond a mere expression of preference or ordinary wishes and the Child has attained an age and degree of maturity at which it is appropriate to take into account his views so that the Court should exercise its discretion to refuse to make an order for his return to New Zealand (Regulation 16(3)(c)).
None of the bases or grounds on which the mother opposed the order for return of the child was accepted by his Honour, and thus the order for return was made. To the extent necessary for the purposes of the appeal, I will refer later to his Honour’s reasons for rejecting the objections raised by the mother.
The issues raised on the appeal
As summarised in the written submissions on behalf of the appellant mother her grounds of appeal are:
a. The Respondent Husband did not have necessary rights of custody to make a Hague Convention application;
b. The Respondent Father consented or subsequently acquiesced in the child being moved to, or retained in, Australia; and
c. New Zealand was not the child’s habitual residence immediately before his relocation to Australia.
Did the father have “rights of custody” within the meaning of reg 4?
Steele J commenced his consideration of the question of whether the father had rights of custody by setting out the terms of s 17 of the Care of Children Act 2004 (NZ) on which Ms M had relied in her affidavit sworn 2 October 2006, and which relevantly provides:
(1) The father and the mother of a child are guardians jointly of the child unless the child’s mother is the sole guardian of the child because of … subsection (3).
(2) …
(3)If a child is conceived before the commencement of this Act, the child’s mother is the sole guardian of the child if the mother was neither:
(a) married to (or in a civil union with) the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; nor
(b) living with the father of the child as a de facto partner at the time the child was born.”
His Honour then continued:
25.The evidence of the Father and the Mother is in conflict. In the circumstances of this case, I prefer the evidence of the Father, who says that he lived with the Mother at the time the Child was born. The Father did not use the phrase “in a de facto relationship” but the evidence infers that. I am satisfied that the Father and Mother were cohabiting, so that by operation of section 17, the Father and the Mother are joint guardians of the Child. The Mother’s affidavit filed 14 November 2006 in paragraph 3, sworn at a time when the issue of the parties living together was not seen as being central to the issues, records, “I moved out with my two month old son and went to live with my parents”. Her later affidavit filed on 15 December 2006, the day before the hearing, asserts that the parties never lived together as de facto partners.
26.Section 16(2) of the Care of Children Act 2004 (NZ) provides that the duties, powers, rights and responsibilities of a guardian of a child include determining questions about “important matters” affecting the child. “Important matters” is, in turn, defined to include changes to the child’s place of residence, including changes of that kind arising from travel by the child.
27.Regulation 4(2) provides that rights of custody include “rights relating to the care of the child”. Orders 1 and 2 of the Orders made on 4 December 2000 provide in those terms for the “child to live in his father’s care”. The New Zealand High Court has said that rights of custody and rights of access are not mutually exclusive - see Gross v Boda 1995 NZFLR 49.
28.I do not accept the submission made on behalf of the Mother that a proper interpretation of Regulation 4(2) requires that the applicant have both rights relating to the care of the Child and a right to determine the place of residence in order to have “rights of custody” within the meaning of the Regulations. The provision in Regulation 4(2) of the word “and” is, in my view, clearly disjunctive.
29.In my view, having regard to those matters and to the fact that the Father had, pursuant to the orders of 4 December 2000, rights of access which he had been regularly exercising, then it is clear, in my view, that the Father had “rights of custody” sufficient to provide standing to bring an application under Regulation 14.
Although his Honour did not expressly say so, it seems clear that he determined that the father did have rights of custody, which he was regularly exercising, on the basis that he was a guardian of the child, and also on the additional basis that under the order of 4 December 2000 providing for the child “to live in his father’s care” the father had rights of custody.
The mother’s case on appeal was in essence, first that there was not sufficient evidence before his Honour to enable him to have found that for the purposes of s 17 of the Care of Children Act 2004 (NZ) the mother was “living with the father… as a de facto partner at the time the child was born”, and thus to conclude that the father was a guardian of the child and therefore had the right to determine the place of residence of the child.
Secondly, that his Honour erred in his conclusions that rights of custody for the purpose of reg 4(2) do not have to include the right to determine the place of residence of the child, and that accordingly because the father had rights of access which he had been regularly exercising, he had rights of custody for purposes of the Regulations.
In Jiang and Director-General Department of Community Services [2003] FamCA 929 (unreported), the Full Court (Finn, Holden and Mushin JJ) accepted (at least as then presently advised) that in determining whether a child’s removal to Australia is wrongful because it was in breach of the rights of custody which the person (or institution) seeking the return of the child had in relation to the child under the law of the country in which the child habitually resided immediately before the removal:
·the first task of the court is to establish, on the evidence before it, what rights, if any, the parent seeking the return had under the law of the foreign country in relation to the child at the time of removal;
·the next stage is to resolve, as a matter of Australian law under the Regulations (being the law of the forum where the Convention has been invoked), whether those rights amount to ‘rights of custody’ within the meaning of the Regulations; and
·finally, the question is whether or not the retention of the child was in breach of those rights, and therefore whether or not the removal was wrongful within the Regulations.
(See discussion and authorities referred to in paragraphs 33 to 36 of Jiang. See also In re D (a child) (abduction; custody rights) [2007] 1 ALL ER 783 at [39]).
It was also accepted in Jiang that the question of what rights the applicant for the return of the child had in relation to the child in the country in which the child had habitually resided immediately before being removed to Australia, must be determined by the court on the basis of expert evidence before the court. (See paragraphs 37 and 38 of Jiang). Although, it should be noted for present purposes, that under reg 29(5) the court may take judicial notice of a law in a Convention country.
By way of expert evidence Steele J had before him the affidavit of the husband’s family law solicitor, Ms M, sworn 2 October 2006. In her affidavit after setting out various sections of the Care of Children Act 2004 (NZ) which are relevant to applications under the Convention, Ms M set out s 17 of that Act, which I have already set out. Ms M then stated:
7. The evidence of the applicant [father] is that he is the guardian of the named child. The basis of this assertion is that he is the guardian of the children as he was living with the child’s mother when the child was born. According to s 17 of the Care of Children Act 2004 he would be a guardian to the child.
8. Section 15 of the Care of Children Act 2004 defines guardianship as:
For the purposes of this Act ‘guardianship” of a child means having (and therefore a “guardian” of the child has), in relation to the child:
(a)all duties, powers, rights and responsibilities that a parent of the child has in relation to the upbringing of the child;
(b)every duty, power, right and responsibility that is vested in the guardianship of a child by an enactment;
(c)every duty, power, right and responsibility that, immediately before the commencement on 1 January 1970, of the Guardianship Act 1968, was vested in a sole guardianship of a child by an enactment or rule of law.”
9. Section 16(2)(b) of the Care of Children Act 2004 is one of the important matters affecting the child and states:
“Changes to the child’s place of residence (including, without limitation, changes of that kind arising from travel by that child) that may affect the child’s relationship with his or her parents and guardians.”
Ms M then continued:
10. The Care of Children Act 2004 gives a parent and/ or guardian the right of custody to include not only rights relating to the care of the child but also the right to determine the child’s place of residence.
11. In Gross v Boda [1995] NZFLR 49 the Court of Appeal held that custody and access were not mutually exclusive terms.
12. In C v C [1989] 1 WLR 654; [1989] 2 All ER 465 (CA) it was held that the right of a person simply to withhold consent to a child leaving the country was a right of custody.
13. In Dellabarca v Christie the Court of Appeal [1999] NZFLR 97 held that any qualifying right in respect of the care of a child was a right of custody.
14. It is submitted that [the father] possesses “the right to determine where a child is to live” in accordance with s 16 of the Care of Children Act 2004 and therefore has rights of custody as defined in s 97 of the Care of Children Act.”
Section 97 of the Care of Children Act had earlier been set out in Ms M’s affidavit and is in terms similar to reg 4(1) of the Regulations.
It will be seen that Ms M expressed the opinion that the father would be the guardian of the child and thus had the right to determine the child’s place of residence on the basis of the father’s evidence that he was living with the child’s mother when the child was born.
The exact evidence given by the father in his affidavit sworn 3 October 2006 was:
8. … I lived together with the mother at the time of [the child’s] birth.
The mother’s evidence concerning her relationship with the father as contained in her first affidavit sworn 10 November 2006 was:
Abuse from [the father] started during my pregnancy. This included verbal abuse, pushing, and pulling hair. After the child was born, I experienced starvation, and name-calling (such as [examples deleted]) when I was breast-feeding [the child]. [The father] restricted my parent’s visits, the phone was disconnected, power shut off, there was no food, and strange people would visit our house demanding money for [the father’s] business transactions, which I knew nothing about. This is why I moved out with my 2-month old son and went to live with my parents…
In a later affidavit sworn on 14 December 2006 the mother stated:
2. About October 1995 I met [the father]. My son… was conceived from my brief encounter with [the father]. [The child] was born [in] September 1996.
3. Since [the child] was born, I lived at my parents’ address of…[western coastal] New Zealand. Attached and marked ‘Annexure A’ is a hospital tag confirming my place of residence as…[western coastal New Zealand] as at 29 October 1996.
…
5. I did not live with [the father] when [the child] was born. About one and a half (1.5) months after [the child’s] birth, I stayed three (3) nights per week for around six weeks with [the father] to see if he was capable of being a father to [the child]. During that time, I did want his home to be mine on the condition that he is capable of assisting in the care of [the child]. At the time, I was not dependent on [the father] in any way. [The father] did not assist me and [the child] financially, and did not take any active part in the care and raising of [the child]. …
6. At no time did I ever regard myself as, or live as, [the father’s] de facto partner. [The father] never lived with me in the capacity as a de facto partner nor did he ever assume any responsibilities as such.
…
It will be recalled that Steele J found in paragraph 25 of his judgment that the evidence of the father and the mother was in conflict. It clearly was.
His Honour then went on in paragraph 25 to say that he preferred the evidence of the father to the mother. His Honour’s reasons for preferring the father’s evidence to that of the mother, appear a little later in paragraph 25 when he said:
The Mother’s affidavit filed 14 November 2006 in paragraph 3, sworn at a time when the issue of the parties living together was not seen as being central to the issues, records, “I moved out with my two month old son and went to live with my parents”. Her later affidavit filed on 15 December 2006, the day before the hearing, asserts that the parties never lived together as de facto partners.
His Honour was entitled for the reasons which he gave, to prefer the evidence of the father to that of the mother at least in relation to the issue of whether the parties were living together when the child was born. Indeed he might well have added that the mother’s own evidence was inconsistent. It was inconsistent in that in her first affidavit she said that she moved out of the house she shared with the father when the child was two months old whereas in her second affidavit she said that about one and a half months after the child’s birth she stayed “three (3) nights per week for around six weeks” with the father.
Thus it was open to his Honour to prefer the evidence of the father to the mother and to conclude that they were living together when the child was born. However that is not the end of the matter.
It is not the end of the matter because the test in s 17(3)(b) of the Care of Children Act 2004 (NZ) requires not only that the mother be “living with the father of the child” at the time the child was born, but also that she was living with him “as a de facto partner” at that time.
His Honour clearly recognised in paragraph 25 of his reasons this additional requirement because he said “[t]he father did not use the phrase ‘in a de facto relationship’”. However his Honour went on to say “but the evidence infers this.”
The expert evidence of Ms M was of no assistance on this issue of the requirement for a de facto partnership. However a copy of the New Zealand Interpretation Act 1999 became available to us during the hearing of the appeal.
The term “de facto partner” is defined in that Act to mean “a person who is a party to a de facto relationship (as defined in section 29A)”.
Section 29A then relevantly provides:
29A Meaning of de facto relationship
(1)In an enactment, de facto relationship means a relationship between 2 people (whether a man and a woman, a man and a man, or a woman and a woman) who—
(a)live together as a couple in a relationship in the nature of marriage or civil union; and
(b)are not married to, or in a civil union with, each other; and
(c) are both aged 16 years or older.
…
(3)In determining whether 2 people live together as a couple in a relationship in the nature of marriage or civil union, the court or person required to determine the question must have regard to—
(a) the context, or the purpose of the law, in which the question is to be determined; and
(b) all the circumstances of the relationship...
The only evidence which was before his Honour from which he could have inferred the existence of a de facto relationship between the father and the mother were the various paragraphs from their affidavits which I have set out above. In my view, there is nothing in those paragraphs on the basis of which his Honour could have inferred (or this Court could infer) that the father and the mother had lived “together as a couple in a relationship in the nature of marriage or civil union”.
Again, in my view, it fell to the Central Authority to put before his Honour the necessary evidence to establish the existence of a de facto relationship on the basis of which the father would have guardianship rights in relation to the child. This was particularly so once the mother squarely put in issue the existence of a de facto relationship. The Central Authority simply failed to establish its case that the father was a guardian of the child and could thus determine the child’s place of residence.
However it seems clear from the request from the New Zealand Central Authority (attached to the State Central Authority’s Application filed on 11 October 2006) and from the affidavit of Ms M (paragraphs 11- 14) that reliance was placed in support of the application for the return of the child not only on the father’s asserted guardianship rights, but also on the access (or care) order of 4 December 2000 as giving the father rights to custody for purposes of the Convention.
Steele J appears to have also accepted this alternative basis for holding that the father had “rights of custody sufficient to provide standing to bring an application under Regulation 4”. It seems from paragraph 28 of his reasons that his Honour did so on the basis that the definition or explanation of the expression “rights of custody” in reg 4(2) should be read disjunctively.
Nothing put to us, or to which we have been referred in this appeal has persuaded me that we should depart from the decision of the Full Court in Jiang, being that in order to establish that a person has rights of custody within the meaning of reg 4, it is necessary to establish that under the law of the relevant foreign country that that person had a right to determine the place of residence of the child. (See Jiang paragraphs 58 – 65 and the United Kingdom authorities there referred to.) In light of the authorities referred to in paragraphs 112 – 130 of the joint judgment of Thackray and May JJ (which I have had the benefit of reading in draft form), I would be prepared to include “a right of veto” as being included in the expression “right to determine the place of residence”.
Accordingly Steele J was in error when he determined that sub-reg 4 (2) should be read disjunctively, and that therefore a right to care for the child (apparently without the right to determine, or to veto, the place of residence of the child) was sufficient to establish rights of custody within the meaning of reg 4.
I would also say that I do not consider that the expert evidence of Ms M, or the authorities on which she relied, or any other New Zealand authority to which we were referred, established that the terms of the orders of 4 December 2000 gave the father the right to determine the child’s place of residence or to veto a decision concerning that matter (on the assumption of course that he was not a guardian of the child).
Rights of custody in a court
In their joint judgment Thackray and May JJ have suggested that there might have been another basis on which the child’s removal from New Zealand could have been held to be in breach of rights of custody and hence wrongful.
Having regard to the decisions of the Full Court (Kay, Holden and Barlow JJ) in Brooke v Director General, Department of Community Services (2002) FLC 93-109 and of Nicholson CJ in Secretary, Attorney-General’s Department v TS (2001) FLC 93-063, their Honours suggest that it is arguable that the provisions of s 80 of the Care of Children Act 2004 (NZ) operate to confer on the New Zealand Courts a power of veto in relation to a child’s residence; thereby vesting rights of custody in the New Zealand Courts for purposes of the Convention. Section 80 makes it an offence to take, or attempt to take, a child out of New Zealand, without the leave of the Court, knowing that proceedings are about to be commenced or are pending, or that an order for care or contact is in force in relation to a child, or where there is an intention to prevent a care or contact order from being complied with.
In Brooke the Full Court concluded:
27. Where a foreign court is properly seised of an issue as to where a child should reside, and where, whilst those proceedings are pending the child is removed from the jurisdiction of that court without the consent of the Court, then, where an application is properly brought under the terms of the Family Law (Child Abduction Convention) Regulations 1986 in Australia, an Australian court is bound to recognise the rights of custody that repose in the foreign Court otherwise properly seised with the dispute where those rights of custody include the right to determine the place of residence of the child.
In reaching this conclusion the Full Court relied on certain overseas decisions as well as the first instance decision of Nicholson CJ in Secretary, Attorney-General’s Department v TS. However it needs to be noted that in both Brooke and TS, there were proceedings in relation to the subject child pending in a foreign court. That is not the situation in the present case.
It is true that in TS Nicholson CJ made reference to a single judge decision in the New Zealand case of Re Olsen (Family Court of New Zealand, Porirua, 1994 FP 37/94) and went on to say:
4.The latter decision involved consideration by his Honour of s 20 of the New Zealand Guardianship Act 1968 which prevents the removal of children from New Zealand in order to defeat the claim of any person who has applied for custody or access to a child. Section 20(3) of that Act makes it an offence for any person without the leave of the Court to remove a child from New Zealand knowing that there are proceedings pending in relation to custody or access in relation to the child. His Honour considered that the provisions of the Act provided an additional reason why the New Zealand Court had rights of custody in relation to the child.
However, it will be seen that Nicholson CJ regarded the legislative provision which was apparently a predecessor provision to s 80 of the Care of Children Act 2004 (NZ) only as “an additional reason” for determining that the New Zealand Court had rights of custody.
For my part I am far from persuaded that a legislative provision which requires the leave of the court to be obtained before a child, who is the subject of parenting proceedings or orders, can be taken out of a country (for any reason) should be regarded as conferring rights of custody on the courts of that country for purposes of the Regulations (at least in the absence of pending proceedings in one of those courts). I have great difficulty in seeing how such a concept can be fitted within the Regulations as they are currently drafted.
Conclusion
Accordingly, in my opinion, the State Central Authority failed to establish its case under reg 16 that the father had rights of custody which were breached when the mother removed the child to Australia. Therefore as all the conditions required to be fulfilled under reg 16(1A) were not fulfilled, the removal of the child to Australia was not wrongful and the State Central Authority’s application for the child’s return should have been dismissed. I would therefore allow the appeal.
Given the conclusion which I have reached, it is unnecessary that I consider the other issues raised on the appeal.
MAY & THACKRAY JJ:
In September 2006, Ms Wenceslas (“the mother”) and her almost ten-year-old son, K, left New Zealand to live in Australia. On 19 December 2006, Steele J made an order for K’s return to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The mother now appeals against that order.
Three questions arise for determination:
·Did K’s father have rights of custody within the meaning of the Regulations?
·Was K habitually resident in New Zealand prior to his removal?
·Did K’s father consent to his removal?
Background
The mother lived in New Zealand for more than 10 years before she came to Australia. While living in New Zealand, she commenced a relationship with Mr L (“the father”). Their only child, K, was born in New Zealand in September 1996.
There is a dispute concerning the extent to which the mother and the father cohabited. We will return to that issue later in these reasons. It is common ground their relationship broke down soon after K’s birth and that they have lived apart for almost all of his life.
The father and the mother attended counselling in New Zealand in 1997. The counsellor recorded their agreement to consent to orders by which the mother would have custody of K and the father would have regular access. The agreement also contained provision for the mother to give the father “two months’ notice of any intention to leave the country”. The counsellor also recorded that the mother “will recognise [the father’s] guardianship rights”, although the mother now denies having agreed to this.
No orders were made in proceedings between the parties until March 1999, when the father obtained an order restraining the mother from removing K from New Zealand. In June 1999, a further order was made giving the mother custody of K and the father defined access. (This order was not tendered in evidence before Steele J and was only provided to us, at our request, after the hearing of the appeal).
In April 2000, a further order was made directing the mother to surrender her passport to the New Zealand court. The evidence suggests this order was made at the same time the court dismissed the mother’s application for discharge of the order preventing her removing K from New Zealand.
In December 2000, the mother and father consented to an order providing for the discharge of the order of June 1999. In lieu of that order, the parties consented to an order which contained the following provisions:
1 [K] will be in his father’s care every second weekend…
2 [K] will be in his father’s care half the school holidays...
3 At all other times [K] will be in his mother’s care…
The orders made in December 2000 did not discharge the March 1999 order preventing the removal of K from New Zealand. The mother therefore had to apply to the court for permission in March 2002, and again in December 2004, when she wanted to take K to Australia for a holiday. The father consented on both occasions.
In June 2005, the parties jointly applied to the court for the discharge of the order preventing K’s removal from New Zealand. The application form, which was signed by both the mother and the father, contained the following statements:
This application is made without notice because: [K] will travel to Australia with his mother on … 01-07-05.
This application is made on the grounds that:- both parents of [K] agree that it is best for their son to have the freedom to travel out of New Zealand with either parent and that all prior grievances have since been resolved.
In their affidavit in support of the application, the mother and father said:-
…we agree that past grievances have since been resolved and that both parents have an excellent relationship regarding our son [K]. As such, we feel there is no longer any reason to have any court orders in place to protect the movements of our son to leave New Zealand.
On 27 June 2005, an order was duly made discharging the order preventing the removal of K from New Zealand. Presumably the mother and K travelled to Australia in July 2005 as planned; however, the mother left K in the father’s care when she next visited Australia in April 2006.
On 15 September 2006, the mother was seriously assaulted. It is unnecessary to consider the contested evidence concerning the identity of the assailant. It is sufficient to say that on the day following the assault, the mother brought K to Australia with the intention of never returning to New Zealand.
The application for the return of the child
Following the mother’s arrival in Australia, the father caused proceedings to be commenced pursuant to the Regulations seeking K’s return to New Zealand.
The Regulations are made pursuant to s 111B of the Family Law Act 1975, which was enacted to enable the performance of Australia’s obligations under the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).
The application was formally made by the Director-General of the New South Wales Department of Community Services in his capacity as the State Central Authority, established for the purposes of the Convention (“the Central Authority”).
Regulation 16(1) requires the court (subject to certain discretionary matters) to order the return of a child who has been removed to Australia from another country which is a party to the Convention if the court is satisfied that the child’s removal was “wrongful” within the meaning of subregulation 16(1A). New Zealand is a party to the Convention.
Subregulation 16(1A) provides that a child’s removal to Australia “is wrongful” if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
As a consequence of amendments made in 2006, there is now a further explanation of the word “wrongful” in the Regulations. This appears in subreg 2(2), which provides that “the removal or retention of a child is wrongful in the circumstances mentioned in Article 3 of the Convention”.
Article 3 of the Convention relevantly provides:
(4)The removal or the retention of a child is to be considered wrongful where–
(5)a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(6)b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
As already noted, the otherwise mandatory obligation to order the return of a child wrongfully removed is subject to certain discretionary matters. Subregulation 16(3) provides that a court may refuse to make an order for return if the person opposing the making of the order establishes one of a number of possible grounds. The only one relevant here is contained in subreg 16(3)(a)(ii), which gives the court a discretion not to order the return if the person, institution or body involved “had consented or subsequently acquiesced in the child being removed to, or retained in, Australia”.
The mother’s case in opposing the application
The mother’s primary argument before Steele J was that K’s removal from New Zealand was not wrongful within the meaning of the Regulations. The basis for this proposition was two-fold. First, it was submitted that the father did not have “rights of custody” within the meaning of the Regulations. Secondly, it was argued that K was not habitually resident in New Zealand immediately prior to his removal.
If her primary argument failed, the mother submitted that the court had a discretion not to order the return of K because the father had consented to (or as her counsel put it, acquiesced in) the removal to Australia.
In the proceedings before Steele J the mother also relied upon two other matters which would have given the court grounds on which to exercise a discretion to refuse to order K’s return. His Honour found against the mother on both issues and his findings were not challenged on appeal.
The decision of the trial Judge
The application of the Central Authority was heard by Steele J on 18 December 2006. His Honour gave ex tempore reasons for judgment, in which he concluded that the father did have “rights of custody” within the meaning of the Regulations.
The mother had conceded that if the father was found to have rights of custody, her argument in relation to habitual residence must fail. Having found that the father did have such rights, Steele J also found that K was habitually resident in New Zealand prior to his removal.
Steele J also concluded that the father had not “acquiesced in the removal of the child from New Zealand”.
Having then dealt with the other matters which are not the subject of this appeal, his Honour made orders directing the Central Authority to make arrangements for K’s return to New Zealand.
The mother’s grounds of appeal
The grounds of appeal were unsatisfactory in form, but clearly enough identified the findings of Steele J with which the mother took issue.
The first seven grounds were directed to the findings that led his Honour to conclude that the father had rights of custody at the time of the child’s removal.
A further ground (Ground 8) was directed to his Honour’s rejection of the proposition that the father had consented to (or acquiesced in) the child being removed to Australia.
The remaining ground (Ground 9) challenged his Honour’s finding that New Zealand was the child’s place of habitual residence prior to his removal from New Zealand.
Grounds 1 – 7 – Rights of custody
The first 7 grounds of appeal were as follows:
1.The requirements of rights relating to the care of the person of the child, and the right to determine the place of residence of the child, under Regulation 4, Sub-Regulation (2), of the Family Law (Child Abduction Convention) Regulations 1986, are to be read inclusively and heavier emphasis be placed on the latter requirement, without which rights of custody does not exist.
2.The child’s father did not live with the Appellant at the time when the child was born.
3.The child’s father did not live with the Appellant as her de facto partner.
4.The child’s father did not have a right to determine the place of residence of the child.
5.The order made by the New Zealand District Court on 24 March 1999 did not give the father a right to determine the child’s place of residence.
6.The consent order made by the New Zealand Family Court on 04 December 2000 did not give the father a right to determine the child’s place of residence.
7.‘Access’ and ‘custody’ are mutually exclusive terms for the purposes of Hague Convention applications.
In order to appreciate the issues raised by these grounds it is necessary first to consider what is meant by “rights of custody” for the purposes of the Regulations and how such rights can arise. This is dealt with by reg 4:
4 Meaning of rights of custody
(1)For the purposes of these regulations, a person, an institution or another body has rights of custody in relation to a child, if:
(a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2)For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3) For the purposes of this regulation, rights of custody may arise:
(a) by operation of law; or
(b) by reason of a judicial or administrative decision; or
(c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.”
In order to determine whether a person, institution or other body had “rights of custody” the Court must have regard to the law of the convention country in which the child was habitually resident immediately before the removal: McCall and McCall; State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC 92-551 (“McCall”) at 81,517.
Rights of custody – the trial Judge’s findings
In considering whether or not the father had rights of custody, Steele J first dealt with the question of whether or not he was K’s guardian within the meaning of the Care of Children Act 2004 (NZ). It will be convenient to set out the relevant statutory provisions and his Honour’s findings on this aspect of the matter later. It is sufficient for present purposes to say that his Honour found that the mother and the father were joint guardians under the New Zealand legislation.
Although this finding would have been sufficient to establish that the father had rights of custody, Steele J went on, in effect, to consider whether or not there was an alternative basis on which such rights might arise. In doing so, his Honour said at [27] to [29]:
Regulation 4(2) provides that rights of custody include “rights relating to the care of the child”. Orders 1 and 2 of the Orders made on 4 December 2000 provide in those terms for the “child to live in his father’s care”. The New Zealand High Court has said that rights of custody and rights of access are not mutually exclusive - see Gross v Boda 1995 NZFLR 49.
I do not accept the submission made on behalf of the Mother that a proper interpretation of Regulation 4(2) requires that the applicant have both rights relating to the care of the Child and a right to determine the place of residence in order to have “rights of custody” within the meaning of the Regulations. The provision in Regulation 4(2) of the word “and” is, in my view, clearly disjunctive.
In my view, having regard to those matters and to the fact that the Father had, pursuant to the orders of 4 December 2000, rights of access which he had been regularly exercising, then it is clear, in my view, that the Father had “rights of custody” sufficient to provide standing to bring an application under Regulation 14.
Rights of custody – the mother’s submissions
Having referred to the provisions of subreg 4(2), counsel for the mother summarised his argument on the rights of custody issue as follows:
Pursuant to the above Regulation, requirements of rights relating to the care of the person of the child and the right to determine the place of residence of the child are to be read inclusively with a heavier emphasis to be placed on the latter requirement. This is so because the Sub-Regulation used words ‘and in particular’ as a pre-fix to the requirement of an applicant to have the right to determine the child’s place of residence. Without this requirement a person cannot claim to have rights of custody.
It is not disputed that the Respondent father does have rights relating to the care of the person of the child by virtue of consent orders made by the New Zealand Family Court 04 December 2000. However, possessing this right is not enough for the purposes of a Hague Convention application. Of critical importance is that the Respondent Father must discharge the onus of showing he possesses the right to determine the child’s place of residence.
Counsel for the mother went on to submit that the father could only have the right to determine where the child lived if he was a guardian pursuant to the New Zealand legislation. He submitted there was no evidentiary basis on which Steele J could have found the father was a guardian of K.
Counsel for the mother concluded his summary of argument on this point by saying:
Under Regulation 4(1)(b), rights of custody are attributed to the father under a law in force in the convention country in which the child habitually resided immediately before his or her removal or retention. The New Zealand High Court in Gross v Boda [1995] 1 NZLR 569 said that rights of custody and rights of access are not mutually exclusive. However, the Gross v Boda principle is applicable to the circumstances of that case and is not applicable to the present case on the basis that the appellant consented to orders made on 04 December 2000. The appellant contends that ‘access’ and ‘custody’ are mutually exclusive terms for the purpose of Hague Convention applications. With utmost respect to Justice Steele, his Honour erred in finding the father’s rights of access pursuant to the orders of 4 December 2000 are sufficient to bring an application under Regulation 14 of the Regulations.
Rights of custody – the Central Authority’s submissions
The Central Authority responded to these propositions by submitting that there was sufficient evidence before Steele J to justify his finding that the father was a guardian of the child and therefore had the right to determine the child’s place of residence.
In the alternative, counsel for the Central Authority submitted:
Even if there were any force in the mother’s contention that Regulation 4(2) requires that rights of custody must include the right to determine the place of residence of the child (which contention is submitted to be wrong), it is submitted that the father’s rights in terms of the Order of 4 December 2000 of the New Zealand Family Court incorporate the right to determine [K’s] place of residence. If this were not so, it would be open to the mother to frustrate the Orders by simply moving [K] to a place which would render it impossible for the father to exercise his rights of care.
By way of amplification, counsel for the Central Authority submitted that it was implicit in the terms of the order of December 2000 that the mother would require the father’s consent to relocate with K. In support of this proposition, counsel referred to the decision of the House of Lords in Re D(a child) (abduction: custody rights) [2007] 1 All ER 783 (“Re D”), and in particular to the view expressed by Baroness Hale of Richmond that a “right of veto” amounts to “rights of custody”. (We will later discuss what is meant by a “right of veto” in the context of the Convention.)
Counsel for the Central Authority then went on to submit that
it is settled law in New Zealand that the rights afforded to the father in terms of the Orders of 4 December 2000 constitute ‘rights of custody’ – see Gross v Boda [1995] NZFLR 49, where the Court of Appeal held that “custody” and “access” were not mutually exclusive terms.
Counsel for the Central Authority further submitted that
His Honour was entirely correct in his finding that the provision in Regulation 4(2) of the word “and” is disjunctive… It is submitted that the clear meaning of Regulation 4(2) is that “rights of custody” has a wide meaning which is not limited by definition, but which does include the rights mentioned in the Regulation (namely rights relating to the care of the person of the child and rights relating to determining the place of residence of the child). If a parent has the right to determine the place of residence of a child, he has rights of custody. This does not mean that if he does not have the right to determine the child’s place of residence he does not have rights of custody. This would depend on whether there were some other ground upon which he would have rights of custody (eg rights relating to the care of the person of the child).
In support of this proposition, counsel referred to what we accept are the uncontroversial views expressed by Waite LJ in Re B (A Minor) (Abduction) [1994] 2 FLR 249 at 260 to the effect that the term “rights of custody” needs to be construed in the sense that will best accord with the objective of the Convention, and that in most cases this “will involve giving the term the widest sense possible”.
As an example of such a wide construction, counsel for the Central Authority directed us to another New Zealand authority, Dellabarca v Christie [1999] 2 NZLR 548. In that case the New Zealand Court of Appeal held that in order to have rights of custody for Convention purposes, it was not necessary to establish that the person claiming such rights had the right to determine the child’s place of residence. The Court of Appeal was of the view that it was necessary only that the person had “any qualifying rights relating to the care of the person of the child, one of which rights may be the right to determine place of residence”. On this view, the fact a person had the right to determine the child’s place of residence was “sufficient but not necessary” to establish they had rights of custody.
Rights of custody – the law in Australia
Neither counsel directed us to any Australian authority to support or refute the proposition that rights of custody can exist without the right to determine the child’s place of residence. The only authorities to which we were referred were the two New Zealand cases already mentioned, Gross v Boda and Dellabarca v Christie.
It is important to emphasise that the meaning of “rights of custody” for the purposes of the Convention is to be determined in accordance with the law of Australia, not New Zealand. At times during the course of submissions by counsel for the Central Authority it appeared to be suggested that because K and his parents had lived in New Zealand, the decisions of the courts of that country concerning the meaning of “rights of custody” were conclusive of the issue. Any such suggestion is erroneous (as counsel for the Central Authority ultimately acknowledged) for two reasons.
First, New Zealand has honoured its obligations under the Convention by enacting domestic legislation. In doing so, the New Zealand Parliament has employed three different statutory definitions of “rights of custody”. The original version, which was in effect at the time Gross v Boda was decided, departed significantly from the words used in the Convention (and in the Regulations.) The amended version, which was in effect when Dellabarca v Christie was decided, came much closer to the words employed in the Convention (and the Regulations) but did not use precisely the same form of words. The current version (now to be found in s 97 of the Care of Children Act 2004) is different again.
Secondly, as Lord Browne-Wilkinson said in his much approved judgment in In re H (Minors) (Abduction: Acquiescence) [1998] AC 72 at 87:
An international Convention, expressed in different languages and intended to apply to a wide range of differing legal systems, cannot be construed differently in different jurisdictions. The Convention must have the same meaning and effect under the laws of all contracting states.
Regrettably, that ideal is more easily stated than attained. Not only have some countries used different words from those appearing in the Convention when enacting legislation to give effect to it, but also courts of different countries have sometimes taken different approaches in interpreting key elements of the Convention. In these circumstances, whilst judgments of the superior courts in New Zealand have much persuasive value, they are of no greater persuasive force than the judgments of superior courts of other signatory countries.
Accordingly, before we turn to consider the views expressed in the courts of New Zealand (and other countries) it is first necessary to determine whether the matter in issue has been considered and authoritatively resolved by the courts of our own country. It would be surprising indeed if the matter has not been the subject of consideration during the many years since Australia ratified the Convention.
Counsel for the mother assured Steele J that he had “done some extensive searches on this, and I certainly haven’t come across any cases”. However, our own research establishes that the point has indeed been considered in Australia, including a comparatively recent (albeit unreported) decision of the Full Court of this Court.
The first relevant reported decision appears to be that of Murray J in Police Commissioner of South Australia v Temple (1993) FLC 92-365, where her Honour said at 79,826:
Counsel for the Central Authority argues that the phrase “rights relating to the care of the person of the child” enables Australian courts to construe custody more widely so as to include any matter of access. The latter is an attractive argument until one sees that the Convention has a separate Chapter (Art. 21) dealing with the Rights of Access which is reflected to some extent in our reg. 24.
…
The remedies available under this Article and correspondingly under reg. 24 to a parent who has “rights of access” only, appear to be more limited than those afforded to a parent who has “rights of custody”. I therefore hold that “rights of custody” do not in the context of the Convention include a right to access.
The decision of Murray J was the subject of an appeal to the Full Court but this aspect of her Honour’s judgment was not the subject of challenge.
In McCall (supra at 81,516) the Full Court alluded to this issue when it reproduced a quotation from a paper delivered by the Deputy Secretary General of The Hague Conference on Private International Law. The Deputy Secretary General had said:
Another term which takes on its own gloss under the 1980 Convention is the term `rights of custody' itself. This is a term which may be used as a term of legal art in many systems, although the trends of the past twenty years are towards scrapping the traditional terms custody and access (or visitation) in favour of more shaded terms which may reflect a less rigid division of rights between the child's parents. `Rights of custody' under the Hague Convention, however, are partially defined in Article 5 so as to put emphasis on the right to determine the child's place of residence, the issue which is usually most critical when the main issue is one of `wrongful' removal or retention.
In State Central Authority v Ayob (1997) FLC 92-746, (“Ayob”) Kay J dealt with a case where the mother had the benefit of an order made by a court in the United States of America which granted her custody of the child and gave the father certain visitation rights. In determining whether or not the removal of the child from the United States was wrongful, Kay J proceeded (at 84,070) on the express assumption that the Central Authority had to establish that the father not only had the visitation rights conferred by the USA order, but also the right to determine the place of residence of the child.
In Secretary, Attorney-General’s Department v TS (2001) FLC 93-063, Nicholson CJ dealt with a case involving an ex nuptial child brought to Australia from New Zealand. The father left behind in New Zealand had been exercising regular access to the child, not by court order but by private arrangement with the mother. In dealing with the question whether or not the New Zealand court itself had rights of custody, Nicholson CJ referred to the decision of Lord Donaldson MR in the English Court of Appeal in C v C (Abduction: Rights of Custody) [1989] 2 All ER 465 (“C v C”), where it was said at 473:
‘Custody’, as a matter of non-technical English, means ‘Safe keeping, protection; charge, care, guardianship’ (I take that from the Shorter Oxford English Dictionary); but ‘rights of custody’ as defined in the convention includes a much more precise meaning, which will, I apprehend, usually be decisive of most applications under the convention. This is ‘the right to determine the child’s place of residence’…
The precise matter in issue in this appeal was considered by the Full Court in Jiang and Director-General Department of Community Services [2003] FamCA 929 (“Jiang”). There the court was concerned with an application for the return of a child to Georgia in the United States of America, where the father had the benefit of an order awarding him “joint legal custody” of the child and specified visitation rights. The Full Court (Finn, Holden and Mushin JJ) said at [59] and [60]:
It might perhaps be thought that the fact that the father has been designated joint legal custodian under the law of Georgia would be sufficient to conclude that for purposes of the Regulations he has rights of custody.
However, reference to the somewhat unsatisfactory definition of rights of custody in Reg 4 …, and also to the language of Article 5 of the Convention … suggest that “rights of custody” under the Regulations, or under the Convention, must include the right to determine the child’s place of residence.
The Full Court in Jiang noted that support for that interpretation could be found in the English authorities, including the portion of the judgment of Lord Donaldson MR in C v C which Nicholson CJ had cited with approval in Secretary, Attorney-General’s Department v TS.
The Full Court went on at [65] to note the importance of maintaining the distinction between custody and access for purposes of the Convention. The Court, having observed that the importance of this distinction had been emphasised by Hale J in S v H (Abduction: Access Rights) [1998] Fam 49, said this:
We think it important to draw attention to this distinction in the context of the present case where the father has access or visitation rights which are likely to have been rendered virtually nugatory by the removal of the child to Australia. Having regard to the reasoning of Hale J in S v H, the father’s rights of visitation in this case could not be said, in our view, to amount to rights of custody within the meaning of Reg 4. Indeed, we did not understand Counsel for the Central Authority to make any submission to this effect.
It will be apparent that the proposition advanced by counsel for the Central Authority in the present appeal was not advanced in Jiang. Nevertheless, it is also apparent that the members of the Full Court entertained no doubt that mere rights of access/contact do not constitute rights of custody for the purposes of the Regulations.
Given that the point in contention here was not argued in Jiang and given that the matter has not been the subject of authoritative determination by the Full Court, nor by the High Court, we accept that it was open to counsel for the Central Authority to argue that Steele J was right in deciding that the father had rights of custody, even if the father did not have the right to determine the child’s place of residence.
Rights of custody – the law in other Convention countries
Since it is desirable that the Convention be construed in the same way in all signatory countries, we turn now to overseas decisions for guidance. We will first consider the position in the United Kingdom, where the Convention has been adopted in its original form and where the question has been the subject of a very recent authoritative pronouncement by the House of Lords.
The case in question was Re D (supra), where Baroness Hale of Richmond reiterated the views she had expressed as a trial Judge in S v H (supra) concerning the importance, for Convention purposes, of distinguishing between rights of access and rights of custody. Her Ladyship said at [24] and [25]:
The world would be a simpler place if the convention had provided that all removal or retention of a child outside the country where he or she is habitually resident without the consent of the other parent or the authority of a court is wrongful. But it does not. The convention recognises that not all parents have the right to demand the automatic return of children who have been taken away without their consent. It does so by providing that the removal or retention of a child is only wrongful under art 3 if it is—
‘in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention …’
…
Article 5(a) provides that—
‘‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence’.
The convention also obliges, in art 21, the central authorities to assist a 'left behind' parent in realising his or her 'rights of access', not by securing summary return to the home country, but through promoting their peaceful enjoyment, removing obstacles to their exercise, and initiating or assisting the initiation of proceedings to protect them. Article 5(b) provides that ‘“rights of access” shall include the right to take a child for a limited period of time to a place other than the child's habitual residence’. Thus it was envisaged that the right to have the child to stay away from his home might still amount to 'rights of access' rather than 'rights of custody'. It is quite clear from the explanatory report of Professor Elisa Pérez-Vera (April 1981) that the original parties to the convention drew a deliberate distinction between rights of custody and rights of access and did not intend that mere rights of access should entitle a parent to demand the summary return of the child. As Professor Pérez-Vera pointed out (para 65), such an approach would ultimately lead to ‘the substitution of the holders of one type of right by those who held the other’.
All of the other members of the House of Lords agreed with the views expressed by Baroness Hale on this point. Lord Hope of Craighead also had this to say:
It is wholly understandable that the father should feel aggrieved by what has happened in this case. The effect on his ability to exercise his rights of access is plain to see. But the phrase ‘rights of custody’ has been given a particular definition by the convention. It is only if there has been a breach of rights of custody as so defined that the removal can be described as wrongful for its purposes…
A similar approach has been taken in Canada. In Thomson v Thomson (1994) 6 R.F.L. (4th) 290 the Supreme Court of Canada considered for the first time the interpretation of the Convention in that country. In the leading judgment, La Forest J drew attention at [44] and [45] to the distinction made in the Convention between enforcement of custody rights and enforcement of access rights. His Honour said, “…the Convention leaves the enforcement of access rights to the administrative channels of central authorities designated by the state parties to the Convention”.
The Supreme Court of Canada reiterated these views in DS v VW (1996) R.F.L. (4th) 341 — see in particular the judgment of L’Heureux‑Dubé J, with whom all of the other members of the Court agreed on this point.
We now turn to consider the decision of the New Zealand Court of Appeal in Gross v Boda, to which Steele J referred when determining that the father could have rights of custody, even if he did not (contrary to his Honour’s primary finding) have the right to determine the place of residence of the child.
The court in Gross v Boda was dealing with an application by a father for the return of a child to Arizona. The mother had been awarded the “sole care and custody” of the child and the father had been awarded “reasonable rights of visitation”, which included alternate weekends and time during school holidays. Adopting the universal approach in characterising rights for the purposes of the Convention, Cooke P (with whom Tompkins J agreed) said at 54-55:
The fact that the word ‘sole’ is used [in the order made in the USA] in defining the rights of the wife and the fact that the word ‘visitation’ is used in defining the rights of the husband are not determinative of the issue that this Court has to consider. It is the essence of the rights thereby vested in the parties which must guide our decision.
Cooke P went on to consider whether or not the visitation rights the father had pursuant to the order amounted to rights of custody for the purposes of the Convention. In considering the views of the learned President, it must be kept in mind that the Court of Appeal was dealing with the definition of the expressions “rights of custody” and “rights of access” as they appeared in the New Zealand legislation at the time.
Section 2 of the New Zealand Guardianship Amendment Act 1991 then provided:
‘Rights of access’ means the right to visit a child and includes the right to take a child for a limited period of time to a place other than the child’s habitual residence.
Section 4 of the same Act, insofar as it is relevant, defined “rights of custody” as follows:
4.(1) For the purposes of this Part of this Act, a person has rights of custody in respect of a child if, under the law of the Contracting State in which the child was, immediately before his or her removal, habitually resident, that person has, either alone or jointly with any other person or persons, —
(a) The right to the possession and care of the child; and
(b)To the extent permitted by the right referred to in paragraph (a) of this subsection, the right to determine where the child is to live…
We again observe that in defining “rights of custody”, the New Zealand Parliament had used a formulation quite different from that appearing in the Regulations. Nevertheless, having referred to the definitions of “rights of access” and “rights of custody” in the New Zealand legislation, Cooke P said:
…those definitions are not mutually exclusive. A right of intermittent possession and care of a child will fall within s 4(1)(a) and to that extent will fall within the definition of rights of custody also. No doubt it may also fall within the definition of rights of access, so there is a possibility of overlap. But no convincing reason has been given in argument for postulating a sharp dichotomy between the two concepts. Nor has anything to suggest mutually exclusiveness been derived from the Convention. Some rights under the Act or the Convention will attach to custody, some to access. The circumstance that remedies may in a given case be open under either head is unimportant on the question of interpretation. Here, because of the nature of the application made to the Court, we are concerned with custodial rights only…
Interpreting s 4 in its natural and ordinary sense in the light of its purpose and context, it appears to me that a parent who has substantial intermittent rights to the possession and care of the child comes within subs (1)(a). On that point I am driven to differ from the interpretation now under appeal, with full respect for the expertise in this field of the Judges who have adopted it. The point is simply one of the natural and ordinary meaning of language and scarcely bears elaboration.
These are the passages from the judgment of Cooke P on which counsel for the Central Authority relied in asserting that rights of access under a court order are in themselves sufficient to establish “rights of custody” for the purposes of the Regulations. We do not regard those passages as authority for that proposition at all. Reference to the full text of Cooke P’s judgment demonstrates that his Honour was doing no more than responding to a submission to the effect that the definitions of “rights of access” and “rights of custody” in the New Zealand legislation were “mutually exclusive”. The learned President was not suggesting that a “right of intermittent possession and care or a child” was of itself sufficient to establish that a person possessing such a right also had “rights of custody”. All his Honour said was that such a right would “fall within” subs 4(1)(a) of the New Zealand Act.
The fact Cooke P did not consider a mere “right of intermittent possession and care of the child” to be sufficient to establish rights of custody is demonstrated by the fact that after making the remarks cited above, his Honour immediately turned to consider whether or not there had been sufficient evidence to justify the finding that the requirements of s 4(1)(b) had also been satisfied. It is clear to us from reading his entire judgment that had those requirements not been made out, Cooke P would have held that the father did not have rights of custody.
Counsel for the Central Authority also relied upon the following passage from the judgment of Richardson J in the same case.
Notwithstanding the nomenclature employed, and in particular the expressions "sole care and custody" and "visitation", the effect of the order was that the visitation rights carried possession and care of the child for substantial periods for the indefinite future. It follows in my view that under the Court order, and jointly with the mother, the father had the right to possession and care of the child for the purposes of s 4(1)(a).
During the course of hearing the appeal, we drew attention to the fact that we too had not been provided with all relevant provisions of the Care of Children Act 2004. By the conclusion of the argument, by our own efforts and with some assistance from counsel, we had obtained what appeared to be all the relevant provisions. (We are able to take judicial notice of the relevant legislation in New Zealand – see reg 29(5) of the Regulations and see also ss 40 and 46 of the Evidence and Procedure (New Zealand) Act 1994.)
The parts of the Care of Children Act 2004 provided to us by counsel for the mother included a definition of “de facto relationship”; however that definition has been repealed. Counsel for the mother again sought to rely on the definition of “de facto relationship” appearing in New Zealand legislation relating to distribution of property, but once again failed to demonstrate any link between than legislation and the Act with which we are concerned.
We were, however, able to locate during the course of argument a copy of the New Zealand Interpretation Act 1999. Section 29A relevantly provides:
29A Meaning of de facto relationship
(1)In an enactment, de facto relationship means a relationship between 2 people (whether a man and a woman, a man and a man, or a woman and a woman) who—
(a)live together as a couple in a relationship in the nature of marriage or civil union; and
(b) are not married to, or in a civil union with, each other; and
(c) are both aged 16 years or older.
(2) …
(3)In determining whether 2 people live together as a couple in a relationship in the nature of marriage or civil union, the court or person required to determine the question must have regard to—
(a)the context, or the purpose of the law, in which the question is to be determined; and
(b) all the circumstances of the relationship...
By grounds 2 and 3 of the Notice of Appeal, the mother, in effect, asserts not only that Steele J erred in finding that she lived with the father as a “de facto partner” at the time K was born but also that he erred in finding that they were living together at all at the time.
As has been already observed, Steele J noted that the father had not alleged he was living in a de facto relationship at the relevant time but he found “the evidence infers that”. It was not clear whether his Honour was saying that the evidence inferred that the husband was asserting the parties were living in a de facto relationship or whether the evidence inferred that the parties were, in fact, living in a de facto relationship. In any event, his Honour had pointed out during the course of the hearing that any averment to this effect in the father’s affidavit could have been struck out as a conclusion of law.
His Honour chose to make his ultimate finding on this issue by expressing his satisfaction “that the Father and Mother were cohabiting, so that by operation of s 17 the Father and the Mother are joint guardians of the Child”. We acknowledge that this Honour was giving his reasons ex tempore, but in expressing his finding in this fashion on a material issue, we are satisfied that his Honour erred. As we now know from reference to the relevant legislation, the test is not whether the parties were “cohabiting”, but rather whether the mother was living with the father as “a de facto partner” at the time of K’s birth.
It is, of course, understandable that his Honour would have “erred” since he was not given even the basic materials that would have allowed him to formulate the test accurately.
The proceedings before Steele J were conducted entirely on the papers and it is therefore open to us to substitute our own finding on this issue. In the course of his submissions, counsel for the Central Authority invited us, when determining whether or not the parties were living in a de facto relationship, to take into account other aspects of the evidence, apart from those matters touched on by Steele J in paragraph 25 of his reasons.
In particular, counsel drew attention to paragraph 3 of the mother’s affidavit, sworn 10 November 2006, in which she said:
Abuse from [the father] started during my pregnancy. This included verbal abuse, pushing, and pulling hair. After the child was born, I experienced starvation, and name-calling (such as [examples deleted]) when I was breast-feeding [K]. [The father] restricted my parent’s visits, the phone was disconnected, power shut off, there was no food, and strange people would visit our house demanding money for [the father’s] business transactions, which I knew nothing about. This is why I moved out with my 2-month old son and went to live with my parents…
Counsel for the Central Authority submitted that the only reasonable inference that could be drawn from this evidence was that the parties were in a de facto relationship both before and after the birth of K. He stressed, in particular, the fact the parties were having a sexual relationship; had a child together; and were living together in a residence which the mother described as “our house”. To that list might have been added the fact it seems the mother was looking to the father for financial support and considered she had some entitlement to information about his financial affairs, albeit she was aggrieved about his conduct in that regard.
The mother’s recollection of matters had altered by the time she came to swear a further affidavit in opposition to the application of the Central Authority on 14 December 2006. In paragraph 5 of that affidavit the mother said:
I did not live with [the father] when K was born. About one and a half (1.5) months after K’s birth, I stayed three (3) nights per week for around six weeks with [the father] to see if he was capable of being a father to [K].
Counsel for the Central Authority submitted that this evidence was “concocted in order to fit the provisions of the Care of Children Act 2004”. Steele J was clearly of much the same view, since he drew attention to the fact that the apparent change in the mother’s evidence came about only after it became obvious that the issue of whether or not the parties lived together at the time of the child’s birth was an important consideration. We would draw the same inference from the way in which the evidence unfolded.
The mother’s counsel submitted that Steele J should have had regard to annexure “A” to her affidavit sworn in December 2006, which was said to be a copy of the nametag the mother wore whilst in hospital at the time of K’s birth. The address appearing on the nametag was the address of the mother’s parents and it was submitted that this was evidence of the fact that the mother was not living with the father at the time.
We accept the nametag was one aspect of the evidence Steele J could have addressed in his reasons, but it needs to be recalled this was an ex tempore judgment. We consider his Honour was justified in coming to the view that the best evidence of where the mother was living at the time of the child’s birth was the evidence she gave a time when she did not know this was a material issue. The address on the nametag might have been the mother’s address at the time of the child’s birth, but there could also have been some other explanation. Furthermore, no explanation was provided as to why the date shown on the tag was more than a month after the date of birth of the baby.
Steele J also had before him an affidavit by Ms G, a long-time friend of the mother, who said she was aware that the mother was living with her parents at the time of K’s birth because she regularly visited her and the baby there. Ms G’s evidence was, of course, unable to be tested by cross-examination and Steele J did not refer to her affidavit in his reasons. Nevertheless, it is worth noting that Ms G was purporting to remember the wife’s place of abode some ten years previously. It will also be recalled that the wife's own evidence (at least initially) was that she moved in with her parents when K was two months old. It would therefore not be surprising that the witness recalled visiting mother and baby at the home of the mother’s parents.
Although the father provided virtually no evidence to assist the Court to determine the issue, we consider the mother’s own evidence in her original affidavit was (just) sufficient to justify a finding that at the time of K’s birth the mother was living with the father as “a de facto partner”.
In reaching this conclusion we have been assisted by the knowledge that s 29A of the Interpretation Act 1999 (NZ) directs a court, when determining such issues, to have regard to the context or purpose of the law in which it is necessary to determine the question. The stated purpose of the Care of Children Act 2004 (NZ) appears in s 3(1), which provides:
The purpose of this Act is to --
(a)promote children's welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care; and
(b) recognise certain rights of children.
When regard is had to the purpose of the legislation it would seem appropriate to set a relatively low threshold when determining whether the parents of a child were living in a de facto relationship. Such an approach would ensure that the child has both natural parents as guardians. This would be consistent with the modern acceptance of the benefits children obtain from having both parents involved in their lives, regardless of whether the parents were married or not. This more contemporary approach can be seen in the New Zealand legislation itself, which has extended guardianship rights to all fathers of ex nuptial children whose name appears on their child’s birth certificate.
The Central Authority bears the onus of establishing that the child’s removal from New Zealand was wrongful and therefore bears the evidentiary onus on issues such as whether or not K’s parents were living in a de facto marriage relationship at the time of K’s birth. We are satisfied that the onus has been discharged and we therefore arrive at the same conclusion as did Steele J, albeit by a different route.
Since we have found that K’s parents were living in a de facto relationship at the time of his birth, they are both his guardians and both have the right to determine his place of residence. The father therefore had “rights of custody” at the time of his removal from New Zealand.
Rights of custody held by the New Zealand Court
For the sake of completeness, we should also observe that there was another basis on which it might have been argued that K’s removal from New Zealand was in breach of “rights of custody”.
The authorities we have discussed above (and see also Brooke v Director General, Department of Community Services (2002) FLC 93‑109) make clear that a court can have “rights of custody” for the purposes of the Regulations. This may arise where, for example, the courts of the country in which the child was habitually resident had the power to veto the child’s removal. In this regard it is worth repeating the remarks already cited from the judgment of Lord Donaldson MR in C v C (our emphasis added):
(7) If anyone, be it an individual or the court or other institution or a body, has a right to object, and either is not consulted or refuses consent, the removal will be wrongful within the meaning of the convention.
The Central Authority did not argue that the New Zealand court had any rights of custody in relation to K, preferring instead to rely on the assertion that K’s father possessed such rights because he possessed the power of veto.
During the course of argument we located and drew the attention of counsel to s 80 of the Care of Children Act 2004 (NZ), which imposes criminal responsibility on parents removing children from New Zealand without the leave of the court in certain circumstances. Section 80 provides (our emphasis added):
80Every person commits an offence and is liable on summary conviction to a fine not exceeding $2,500, or to imprisonment for a term not exceeding 3 months, or to both, who, without the leave of the Court, takes or attempts to take any child out of New Zealand –
(a) knowing that proceedings are pending or are about to be commenced under this Act in respect of the child; or
(b) knowing that there is in force an order of a Court (including an order registered under section 81) giving any other person the role of providing day-to-day care for, or contact with, the child; or
(c) with intent to prevent an order of a Court (including an order registered under section 81) about the role of providing day-to-day care for, or about contact with, the child, from being complied with.
Notwithstanding that the parties consented to the discharge of the injunction preventing the mother from removing K from New Zealand, no provision was made in the orders giving either parent leave to remove him from the jurisdiction. When we drew attention to the matter, counsel for the mother was unable to advance any reason why the mother was not in breach of the provisions of s 80(b) in that she was fully aware that there was in force an order pursuant to which the father had a role in “providing day-to-day care for or contact” with K. Counsel simply said that issues arising out of the alleged breach of the provision would be matters for the New Zealand courts.
It seems to us to have been arguable that K’s removal was in breach of the rights of custody held by the New Zealand court, since he was removed without leave contrary to the provisions of s 80 of the New Zealand Act. In the words of Lord Donaldson in C v C,the court had the right to object, and having not even been consulted, the removal of K was prima facie wrongful. In this regard, see Secretary, Attorney-General’s Dept v TS (supra at 88,170) and in particular Nicholson CJ’s reference to the New Zealand case of Re Olson and Olson, in which it was determined that a provision in earlier New Zealand legislation making it an offence to remove a child from New Zealand without leave of the Court “provided an additional reason why the New Zealand Court had rights of custody in relation to the child”.
Although this matter was raised by us during the course of the hearing of the appeal, it was not a matter on which the Central Authority relied before Steele J. We do not consider it appropriate to express a concluded view on the subject in circumstances where the matter was not ventilated before the trial judge and was not the subject of considered argument on appeal.
Habitual residence – Ground 9
We have previously recorded that the mother conceded before Steele J that if the father had “rights of custody” there could be no doubt that K was habitually resident in New Zealand immediately prior to his removal. His Honour found that the father did have rights of custody and hence found that the mother’s habitual residence defence must fail.
By Ground 9 of her Notice of Appeal, the mother again asserts that “New Zealand was not the child’s place of habitual residence immediately before his relocation to Australia”. Given the finding we have made above, it is strictly unnecessary for us to consider this aspect of the mother’s case. Nevertheless, for the sake of completeness we will deal with the propositions advanced on her behalf. It is convenient to do so before dealing with Ground 8.
The issue of habitual residence was initially not a matter in dispute at all, as the mother’s counsel had assured the Judge who conducted the directions hearing that it was conceded the child’s place of habitual residence was New Zealand. Notwithstanding this concession, the matter was placed in issue when the proceedings came before Steele J. (Regrettably, the mother had not been directed to file the answer she should have filed pursuant to reg 14(3)(a) which would have crystallised the matters in issue.)
On what basis was the surprising assertion made that K was not habitually resident in the country in which he had lived his entire life? The argument was based on an assumption that when a person decides to leave a country in which they have been habitually resident, they immediately cease to be habitually resident in that country. It was further argued that if that person has rights of custody of a child (and no other person shares those rights), the child also loses his place of habitual residence upon the parent forming the intention to live elsewhere. On this view of the law, K ceased to be habitually resident in New Zealand on the day prior to his departure, since it was on that day his mother decided she was going to live in Australia.
To support his novel proposition, counsel for the mother relied on remarks made by the Full Court of this Court in DW v Director-General, Department of Child Safety (2006) 34 Fam LR 656 (“DW”). The question in issue in DW was the way in which a person acquires a new place of habitual residence after leaving a country in which he or she has been habitually resident. The discussion was directed to the extent to which it was necessary to establish that a person who had taken up residence in a new country had a “settled intention” or “settled purpose” of remaining before it would be appropriate to conclude that the new country was their place of habitual residence. This is an entirely different question to the one requiring determination here. There was nothing said by the Full Court in DW that could in any way support the proposition now advanced on behalf of the mother.
It is true, as counsel for the mother pointed out, that the authorities make clear that a place of habitual residence “can be lost in a single day”. However, the authorities are also clear that there must first be a departure from the country of habitual residence. For example, Lord Brandon of Oakbrook (with whom all the other members of the House of Lords agreed) said in In re J (a Minor)(Abduction: Custody Rights) [1990] 2 AC 562 at 578, “A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead”. To like effect, Waite J said in Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 at 995, “…habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning …” [our emphasis added in both instances]
The question whether a person is habitually resident in a particular country is a question of fact, not an artificial legal construct. This has been the consistent view of courts applying the Convention – see, for example, Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 at 895 (“Re M”).
The English Court of Appeal in Re M was dealing with a case involving a child who had been living in India with his grandparents, with the agreement of his parents. The mother became disenchanted with the arrangement and sought to invoke the jurisdiction of the English court, claiming that since she had changed her mind about the child living in India, the child was now habitually resident in England where she herself was residing, even though the child remained resident in India.
The Court of Appeal held that as the mother did not have sole parental responsibility, even her unilateral act in removing the child from India without the father’s consent would not effect a change in the child’s habitual place of residence. Millett LJ said (at 896):
A fortiori, therefore, her mere unilateral decision, without any physical change in the child’s place of residence, cannot possibly alter the place of his habitual residence, any more than could the father’s decision to the contrary effect. But even if the mother had sole parental responsibility, her decision that the child should return and become habitually resident here would not make the child resident here while he remained present in India…
To similar effect, Sir John Balcombe said at 895:
the idea that a child’s residence can be changed without his ever leaving the country where he is resident is to abandon the factual basis of ‘habitual residence’ and to clothe it with some metaphysical or abstract basis more appropriate to a legal concept such as domicil.
The same approach has been adopted in the United States of America. In Friedrich v Friedrich, 983 F.2d 1396 (6th Cir. 1993), the majority of the Circuit Court of Appeal (Boggs and Siler, Circuit Judges), said at 1402:
A person can have only one habitual residence. On its face, habitual residence pertains to customary residence prior to the removal. The court must look back in time, not forward. … [The child’s] habitual residence can be “altered” only by a change in geography and the passage of time, not by changes in parental affection and responsibility. The change in geography must occur before the questionable removal; here, the removal precipitated the change in geography. If we were to determine that by removing [the child] from his habitual residence without [the father’s] knowledge or consent [the mother] “altered” [the child’s] habitual residence, we would render the Convention meaningless. It would be an open invitation for all parents who abduct their children to characterize their wrongful removals as alterations of habitual residence.
This approach was approved by the Full Court of this Court in Cooper v Casey (1995) FLC 92-575 at 81,695 and we strongly endorse it. It is well-established that the Convention is to be construed purposively and not semantically. It is an entirely unhelpful exercise in semantics to suggest that K, who had lived in New Zealand his entire life, was not habitually resident in that country immediately before his removal, merely because his mother had decided she was going to take him to Australia.
There is no substance in this ground of appeal.
Acquiescence – Ground 8
By Ground 8 of her Notice of Appeal, the mother asserts that “[t]he father did consent or subsequently acquiesced in the child being removed to, or retained in, Australia”.
This ground is directed to the way in which Steele J applied reg 16(3), which gives the court a discretion to refuse to order the return of a child if the person opposing the application establishes that the person seeking the order “had consented or subsequently acquiesced in the child being removed to, or retained in Australia”.
Steele J succinctly dealt with this issue in this way:
The Mother contends that by consenting to the discharge of orders precluding the Child’s removal on 27 June 2005 and by failing to raise an objection to the Child’s removal, the Father inferred an agreement for the Child to be taken anywhere, any time and for any length of time without notice. Such an inference flies in the face of the Father’s continued time with the Child every second weekend. It flies in the face of the Father’s statement to the Mother on the night of 14 September 2006 that he would get his lawyer to take the Child from the Mother. The Father had no knowledge of the Child’s departure from New Zealand until after the event and has acted promptly in agitating the New Zealand Central Authority to make a request of the Australian Central Authority to bring these proceedings. In those circumstances it could not be said that the Father has acquiesced in the removal.
Examination of the transcript reveals that in the absence of a formal written response from the mother, Steele J had attempted at the commencement of the hearing to summarise what he understood to be the mother’s defences to the application. In doing so he noted (at Appeal Book 281) that he understood the third aspect of her defence was that by consenting to the discharge of the injunction the father had “acquiesced in [the mother] taking the child … from New Zealand”. Counsel for the mother twice confirmed that this was indeed the defence and he continued to refer to the father’s “acquiescence” during the course of the hearing. Counsel for the Central Authority followed suit.
We should begin by observing that the defences of “consent” and “acquiescence” are quite distinct. Regulation 16(3) makes clear that mere “acquiescence” in the removal of the child would not enliven the discretion of the court to refuse to order the return of the child. As Wall J said in Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 at 173, “[c]onsent … has to arise before the act of removal or retention: acquiescence can only arise after such an act”.
Steele J was therefore led into error when counsel for the mother confirmed that his Honour was being asked to determine whether or not the father had acquiesced in the removal of the child, when the question should have been whether he consented to the removal. Nevertheless, by Ground 8 the mother now effectively asserts that his Honour erred not only in finding that the father had not acquiesced in the removal, but also in failing to find that the father consented to the removal.
Counsel for the mother dealt with this issue in this way:
By virtue of the Respondent Father’s act in seeking and gaining a consent order from the New Zealand Family Court … on the 27 June 2005, to discharge its order preventing removal of the child from New Zealand, and not indicating to the Respondent mother that he does not want the child to leave New Zealand, he consented or subsequently acquiesced in the child being moved to, or retained in, Australia. The removal of the child from New Zealand was not wrongful by virtue of the above consent and acquiescence.
These submissions again confuse the issues of consent and acquiescence. There was no evidence at all to suggest that the father acquiesced in the child’s retention in Australia. On the contrary, as Steele J found, the father very promptly activated the procedures under the Convention to secure K’s return. Accordingly, the only defence possibly available was one of consent.
As his Honour did not expressly address the relevant issue, it falls to us to determine whether or not there was sufficient evidence to establish that the father had consented to the child’s removal. There is, of course, no suggestion that the father expressly consented to K’s removal from New Zealand. The mother’s argument was that such consent could be inferred from the father’s conduct. This raises a preliminary issue as to whether, for the purposes of the Regulations, consent can be inferred from conduct or whether it must be express.
The only relevant authority to which we were directed was Department of Health and Community Services, State Central Authority v Casse (1995) FLC 92-629 (“Casse”). Although Casse related to the question of whether or not acquiescence can be inferred from conduct, it is a useful starting point for our discussion.
In Casse, Kay J adopted (at 82,311) what he understood to be the views expressed by the English Court of Appeal in Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 at 727 that “there needs to be clear and unequivocal words and conduct which could properly be interpreted as acquiescence”.
Lindenmayer J in Director General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785 has drawn attention (at 84,672) to the fact that Kay J did not accurately paraphrase Re R, since the Court of Appeal in that case was of the view that acquiescence may be evidenced by clear words or conduct. Having considered the authorities on this point, Lindenmayer J concluded at 84,672-84,673 that there was “very good authority for the proposition that acquiescence may be passive, by conduct, as well as active by words”.
Lindenmayer J went on to say at 84,674 that
acquiescence may be inferred by the Court from a course of conduct by the party now seeking to rely upon the Convention or the Regulations, without any words expressed to the other party such as might otherwise be thought to be involved, at least in a consent.
Lindenmayer J’s reference in the final sentence of that passage to the evidence that would be required to establish consent is clearly obiter, since his Honour was dealing with a defence of acquiescence, not consent.
Kay J had occasion, in the meantime, to return to consider the issue of acquiescence in Ayob (supra at 84,074 to 84,076), where his Honour discussed at some length the English authorities on the issue. In dealing with that matter, Kay J clearly accepted that acquiescence could be inferred from conduct alone.
We have not been referred to, and our own enquiries have not revealed, any cases before the Full Court of this Court dealing directly with the issue of whether or not consent to the removal of a child can be inferred from conduct. The matter has, however, been considered in the United Kingdom, where there appears to been a divergence of opinion amongst judges dealing with the equivalent provision of the Convention.
In Re W (Abduction: Procedure) [1995] 1 FLR 878, Wall J said at 888:
It follows, in my judgment, that where a parent seeks to argue the Art 13(a) ‘consent’ defence under the Hague Convention, the evidence for establishing consent needs to be clear and compelling. In normal circumstances, such consent will need to be in writing or at the very least evidenced by documentary material. Moreover, unlike acquiescence, I find it difficult to conceive of circumstances in which consent could be passive: there must in my judgment be clear and compelling evidence of a positive consent to the removal of the child from the jurisdiction of his habitual residence.
Holman J disagreed with the views expressed by Wall J when determining an issue of consent in Re C [Abduction: Consent] [1996] 1 FLR 414. His Honour said at 418-419 he was unable to agree with the proposition that “in normal circumstances, such consent will need to be in writing or at the very least evidenced by documentary material”. He went on to point out that the Convention itself does not use the words “in writing” and that:
parents do not necessarily expect to reduce their agreements and understandings about their children to writing, even at the time of marital breakdown. What matters is that consent is ‘established’. The means of proof will vary.
Holman J disagreed also with the suggestion made by Wall J that “it is difficult to conceive of circumstances in which consent could be passive”. He went on:
If it is clear, viewing a parent’s words and actions as a whole and his state of knowledge of what is planned by the other parent, that he does consent to what is planned, then in my judgment that is sufficient to satisfy the requirements of Art 13. It is not necessary that there is an express statement that ‘I consent’. In my judgment it is possible in an appropriate case to infer consent from conduct.
Notwithstanding Holman J could conceive of circumstances in which consent could be established by evidence somewhat less clear and compelling than Wall J would have required, he nevertheless acknowledged that the defence of consent must be made out on the balance of probabilities and that the evidence in support of that defence “needs to be clear and cogent”. In the absence of such clear and cogent evidence, the defence of consent must fail.
Hale J drew attention to this divergence of opinion in Re K (Abduction: Consent) [1997] 2 FLR 212. She expressed her agreement with the views expressed by Holman J. In doing so, Hale J said at 217-8:
It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct.
The views expressed by Hale J appear to be in accord with the preponderance of first instance judicial opinion in the United Kingdom — see T v T (Abduction: Consent) [1999] 2 FLR 912 and the authorities there mentioned at 917. Her Honour’s view that consent can be inferred from conduct was also recently approved in the unanimous decision of the Supreme Court of Ireland in R v R [2006] IESC 7.
It seems to us that the views expressed by Hale J allow for the vagaries often associated with the way in which parents communicate in matters relating to their children. As presently advised (since the matter was not the subject of any submissions before us), we are of the view that consent can be inferred from conduct; however, we are also of the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.
The evidence in the present case fell well short of what is required to make out the defence of consent. We agree with Steele J that it could not possibly be inferred from the father’s consent to the discharge of the injunction that he was indicating his agreement to K’s permanent removal from New Zealand. The reasonable inference to be drawn was that the mother and father did not wish to keep coming back to the Court to seek permission for removal of the child for short visits overseas. This is patently clear by reference to the words the parents themselves used when they prepared their joint application for discharge of the injunction. They said, “it is best for [K] to have the freedom to travel out of New Zealand with either parent”. The implication is that K could go overseas, but only for the purposes of “travel” not for the purpose of a permanent change of abode.
In concluding that Steele J drew the appropriate inference, we have not overlooked the fact that s 80 of the Care of Children Act 2004 would have still required the mother to seek leave of the court before taking K from New Zealand, even after the injunction was discharged. It would seem possible (as regrettably appears to be the case with the “equivalent” provision in our own legislation) that the effect of s 80 is not widely appreciated in New Zealand. Even the father’s solicitor did not include reference to it in her affidavit in support of the application, notwithstanding her affidavit made reference to C v C and the significance of the right to withhold consent to a child leaving the jurisdiction as amounting to “rights of custody”.
There is no substance in this ground of appeal.
Conclusion
We have found (albeit by a different route) that Steele J was right to conclude that K’s father had rights of custody since he was K’s guardian and therefore had the right to determine his place of residence. His Honour was also right in concluding that K was habitually resident in New Zealand before his removal. Finally we have found that K’s father did not consent to his removal. K’s removal from NZ was therefore wrongful and Steele J had no alternative other than to order his return.
The appeal will therefore be dismissed. There will be no order for costs since counsel for the Central Authority advised that he was instructed not to seek costs in the event the appeal was dismissed.
I certify that the preceding two hundred and sixty-nine (269) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 30 April 2007
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