Zinda and Keys

[2019] FamCA 937

FAMILY COURT OF AUSTRALIA

ZINDA & KEYS [2019] FamCA 937

FAMILY LAW – CHILDREN – REGISTRATION OF OVERSEAS CHILD ORDER – Where proceedings in respect of the subject child concluded in October 2019 before the Family Court in New Zealand – Where orders made by the Family Court in New Zealand provide for the father to have full time “day-to-day care” of the child –  Where prescriptive orders were not made to ensure any contact between the child and mother – Where appeal proceedings are pending in New Zealand and two applications to stay the appealed orders have been dismissed – Where the child has relocated to live with the father in Australia – Where the child has absconded from the father’s care and resides with his maternal aunt – Where the child is 14 years of age and not attending school – Where the father seeks registration of the New Zealand orders in the Family Court of Australia and the issue of a recovery order so the child is restored to his care – Where the mother did not object to registration of the New Zealand orders but opposed the application for a recovery order – Ordered the New Zealand orders be registered in the Family Court of Australia and a recovery order made to enforce the operable New Zealand orders.

Family Law Act 1975 (Cth) ss 4, 70G
Family Law Regulations 1984 (Cth) reg 23

APPLICANT: Mr Zinda

RESPONDENT: Ms Keys

FILE NUMBER: NCC 3448 of 2019

DATE DELIVERED: 18 November 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 18 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weightman

SOLICITOR FOR THE APPLICANT: Mullane & Lindsay

COUNSEL FOR THE RESPONDENT: Ms Hughes

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

1. Pursuant to the Family Law Regulations 1984 (Cth), the Principal Registrar of the Family Court of Australia is directed to register in the records of this Court the Orders made by the Family Court of New Zealand at B Town on … October 2019 in respect of the child X, born … 2005.

2. This recovery order is addressed to the Marshal, all officers of the Australian Federal Police, and all officers of the State and Territory police services.

3. The persons to whom this recovery order is addressed are authorised and directed to find and recover, by force if necessary, X, born … 2005, and for that purpose, with such assistance as they may require, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place in which there is or was reasonable cause to believe that the child may be found (including the premises situated at C Street, Suburb D, Sydney, NSW).

4. Upon recovery, the child is to be delivered to the applicant father at E Street, Suburb F, Newcastle, NSW, Australia, or to the person nominated by him in writing to receive the child on his behalf.

1. Orders 2 to 4 inclusive will remain in force until 16 December 2019.

2. The parties’ respective applications for final orders in respect of the child are adjourned to a date to be fixed by the Registrar, not before Tuesday, 17 December 2019, for further procedural directions.

BY CONSENT, IT IS FURTHER ORDERED THAT

1. No order as to costs

NOTATION

A.The orders to be registered pursuant to Order 1 hereof comprise Exhibit F1 tendered to the Court on 18 November 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zinda & Keys has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3448 of 2019

Mr Zinda

Applicant

And

Ms Keys

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 24 October 2019, the applicant father commenced proceedings before the Family Court of Australia seeking orders as between him and the respondent mother in respect of one of their four children.

2. The two eldest children are adults. One lives with the father in Australia and the other lives with the mother in New Zealand. The two youngest children are both minors. The 17-year old lives with the mother in New Zealand and is not relevant to these proceedings, which concern only the youngest child, who is 14 years old.

3. Proceedings between the parties in respect of the subject child were concluded before the Family Court at B Town, New Zealand in October 2019. On that date, orders were made for the father to have the full-time “day-to-day care” of the child and for him to relocate the child from New Zealand to Australia.

4. No prescriptive orders were made to ensure any contact between the child and the mother. Although described as “contact conditions” on the sealed orders issued by the New Zealand court, these comments explain the absence of any such contact orders:

   i)The degree to which [the mother] has acted abusively is of such extraordinary level that it is untenable to consider that any contact for a significant period of time should be permitted to her in any mode whatsoever (emphasis as per original).

   ii)There is no doubt on the significant evidence that any opportunity, if given to her, she would use to further erode any benefit [the child] might gain from being in the care of the father.

   iii)There is also no doubt that she will utilise other persons as a vehicle for that purpose. 

5. Two appeals have been lodged in New Zealand against the orders made by the trial judge on 9 October 2019 – one by the mother and one by the child, who is separately represented by a litigation guardian. Those two appeals have been consolidated and are due to be heard simultaneously by the High Court of New Zealand on 16 December 2019. Although the appeal is fixed for hearing on that date, it is unknown when the High Court will pronounce orders and deliver reasons to determine the appeal.

6. In the meantime, two applications to stay the appealed orders have been dismissed. The mother’s stay application was initially granted on 12 October 2019, but the stay order was rescinded later that same day, allegedly because of false information given to the court by the mother. The child’s own stay application was refused by the High Court of New Zealand on 15 November 2019. It follows that, pending the determination of the appeal, the parenting orders made in respect of the child on 9 October 2019 remain operable and enforceable.

7. In pursuit of the operable orders, the father relocated the child to Australia, where he lives and works, on or about 17 October 2019. The following day, he took the child to a psychologist in an apparent attempt to ameliorate the child’s resistance to his changed residential circumstances. The child absconded and, according to information given to the father by the police, is presently living with a maternal aunt in Sydney. 

8. The father commenced these proceedings as soon as possible after the child absconded. The father’s application for interim relief was first listed before the court on 8 November 2019, but was adjourned on the mother’s application on that date and re-listed for hearing today (Monday, 18 November 2019).

9. The father moves on his application for interim relief contained in the Initiating Application filed on 24 October 2019. In effect, he seeks registration of the operable New Zealand orders in this Court and then the issue of a recovery order enabling enforcement of the New Zealand orders, so the child is restored to his care. The application for residual interim relief is abandoned, save as to his application for costs arising out of this hearing. 

10. The mother moves on her Response filed on 6 November 2019. In effect, she only seeks dismissal of the father’s application and his payment of her costs. 

Evidence

1. The father relied upon:

   a)his affidavit filed on 24 October 2019;

   b)copies of the orders made by the Family Court in New Zealand on 9 October 2019 (Exhibit F1);

   c)the affidavit of his New Zealand solicitor affirmed on 18 November 2019 (Exhibit F2);

   d)a copy of the warrant issued in respect of the child by the Family Court in New Zealand (Exhibit F3); and

   e)the judgment in the High Court of New Zealand, delivered on 15 November 2019 in respect of applications then pending in the New Zealand appeal proceedings (Exhibit F4).

2. The mother relied upon her affidavit filed on 6 November 2019. 

Registration of the New Zealand Orders

1. The mother’s counsel conceded the mother could not object to the registration of the New Zealand orders in this Court. The concession was well made. 

2. Section 70G of the Family Law Act 1975 (Cth) (“the Act”) empowers regulations to be made for the registration of “overseas child orders”, other than “excluded orders”, in Australian courts.

3. For present purposes, the New Zealand orders made in respect of the child on … October 2019 are “overseas child orders” and are not “excluded orders” (s 4 definitions). 

4. The Family Law Regulations 1984 (Cth) make provision for the registration of “overseas child orders.” Ordinarily, registration of orders is an administrative procedure (regs 23(1), 23(1A) and 23(2)), but registration can be achieved by judicial order (reg 23(6)).

5. Regulation 23(6) provides:

   (6)  Where it appears to a court that the documents referred to in sub-regulation (1) have been received by the court other than from the Secretary, the court may, if all other requirements of sub-regulation (1) are satisfied, register the order.

6. The documents needed in that instance are certified copies of the “overseas child order” sought to be registered and the certificate of a reliable source in the home jurisdiction to confirm that the subject order is enforceable in the home jurisdiction (reg 23(1)). 

7. Rather than certified copies of the registerable “overseas child orders,” I have before me in evidence copies of certified copies (Exhibit F1). The father’s New Zealand solicitor is not yet in possession of the original certified copies.

8. The father submits, and I accept, the strict requirements can be relaxed, enabling me to accept the copies of the certified copies as sufficient compliance with the Regulations (reg 6). 

9. The current enforceability of the registerable “overseas child orders” is certified by the father’s New Zealand solicitor but, in any event, was commendably conceded by the mother’s counsel. It will be recalled that the applications to stay the orders pending determination of the New Zealand appeal were dismissed.

10. In the circumstances, I will, pursuant to reg 23(6), make an order for the New Zealand orders of 9 October 2019 to be registered in the Family Court of Australia.

Recovery Order

1. The father seeks orders authorising the child’s recovery, by force if necessary, and restoration of the child to his care in satisfaction of the operable New Zealand orders. 

2. Significantly, the New Zealand trial judge realised the child’s transition to the father’s residential care and his move to Australia would likely bring with it some emotional upheaval. So much is obvious from the contemporaneous issue of a warrant to enforce the orders (Exhibit F3). 

3. As the judge said only last week in the New Zealand appeal proceedings:

   10.A key part of the background to these proceedings is the Judge’s findings in relation to the psychological manipulation of (the child) by his mother and her concerning influence over his views …

   …

   41.I am persuaded by the following factors that this is not an occasion for a stay …

   (c) (the trial judge) weighed up the significant disadvantages and potential harm for (the child) in the orders he made and issued the warrant knowing (the child) would not go voluntarily to his father.  (The child) had expressed very clearly to the Family Court that he would run away.  I accept that a stay would have the effect of undermining the Judge’s decision and underscoring for (the child), his belief (attributed to an underlying pathology that he believes he is acting independently of his mother) that he was right to run away.

   Without having evidence before me on the point (and it is not necessary for these purposes that I have that evidence) it seems obvious that a decision cutting across the Family Court decision in advance of appeal, would make the integration that (the trial judge) aimed for, more difficult.  (The father’s legal representative) suggested that to leave (the child) with his aunt might create a false sense of reality and certainly leaves him in contact with those who will continue to encourage him to resist the judgment. 

4. Presently, so far as the evidence goes, the child is living with his maternal aunt in Sydney and he is not attending school. Evidently, the maternal aunt does not hold parental responsibility for the child and she offers no more than respite care for the child pending determination of the appeal. 

5. The mother’s solitary argument in opposition to the father’s application is that no recovery order should be made until the appeal is determined because, if successful, the orders of 9 October 2019 will be discharged.

6. The mother’s insistent contention that a recovery order would not serve the child’s best interests is not persuasive. The New Zealand trial judge found it was in the child’s best interests to live with the father and the High Court of New Zealand was not persuaded that the child’s best interests warranted a stay of the orders pending the appeal’s determination. The child’s emotional disturbance upon his placement with the father was foreseen by the New Zealand trial judge, who issued a warrant to enforce the order, and was well known by the judge in the High Court of New Zealand, who refused the application to stay the orders pending the appeal.

7. If the father and child were presently in New Zealand, the child would be forcibly returned to the father’s care pursuant to the warrant issued by the trial judge. The operation of the warrant is not, on its face, limited to any particular period of time. Why the orders should not, therefore, now be enforced simply because the father and the child live in Australia, as the New Zealand orders envisaged would occur, was not a question the mother could convincingly answer. 

8. It could conceivably be regarded by the New Zealand courts as a breach of judicial comity if operable New Zealand parenting orders are not implemented by Australian courts simply in reliance upon one party’s individual impression about what is needed in the child’s best interests, particularly given the same individual impression was rejected as untenable by the New Zealand trial judge when the orders were formulated.

9. If the appeal is dismissed, the orders of 9 October 2019 will remain enforceable and there could then be no argument at all to resist the child’s recovery. If that transpires, the child’s recovery now will not be a moment too soon.

10. Alternatively, if the appeal succeeds, a recovery order might be rendered nugatory, but the appealed orders may not be immediately discharged if a re-hearing of the dispute is ordered. The child will then be in Australia and some interim orders will presumably be needed to regulate the child’s care pending the re-hearing, so the impugned orders may be retained by the High Court until fresh applications for interim orders can be entertained in New Zealand. In any event, although the appeal is due to be heard on 16 December 2019, judgment may be reserved for some time and perpetuation of the current breach of orders cannot be tolerated for long.

11. Although the issue of a recovery order is discretionary, on balance, I am satisfied the recovery order should be made to enforce the New Zealand orders. 

12. For those reasons, I make the following orders.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 18 November 2019.

Associate: 

Date:  6 December 2019