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IO v OO FAM-2005-1564 [2006] NZFC 97 (4 October 2006)

Last Updated: 26 September 2016

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD

IN THE FAMILY COURT AT

_{FAM-2005-1564}

IN THE MATTER OF The Care of Children Act 2004 and The Ratification Thereby of the Hague Convention on the Civil Aspects of International Child Abduction 1980

BETWEEN IO

Applicant

AND OO

Respondent

Hearing: 21 June 2006

Appearances: I M Mitchell for Applicant

B Alexander for Respondent

Judgment: 4 October 2006 at 12.15pm

RESERVED DECISION OF JUDGE J A MCMEEKEN

Introduction

[1] Z was born in New Zealand in 2002. He was conceived in

F. His mother is a New Zealander. His father is English but lives in F.

Z lived with his mother in New Zealand until he was about seven months old. He then lived with his mother and father in F until he was almost twenty-two months old. Since that time, August 2004, he has lived in New Zealand with his mother.

[2] The New Zealand Central Authority acting on behalf of the father made application on April 2005 seeking Z’s return to F.

[3] On 12 April 2006 the High Court determined that on or about 22 September

2004 Z was wrongfully retained in New Zealand by his mother, and that the requirements of s 105(1) Care of Children Act 2004 (the Act) had been established.

[4] The mother contends that there are grounds for refusing to make an order for

Z’s return, in particular that the father acquiesced in Z’s removal, and that there is a grave risk that Z’s return to F would harm him.

The Law

[5] The relevant law is:

Section 105 – Application to Court for Return of Child Abducted to

New Zealand

(2) Subject to section 106, a Court must make an order that the child in respect of whom the application is made be returned promptly to the person or country specified in the order if—

(a) an application under subsection (1) is made to the Court; and

(b) the Court is satisfied that the grounds of the application are made out.

Section 106 Grounds for refusal of order for return of child

(1) If an application under section 105(1) is made to a Court in relation to the removal of a child from a Contracting State to New Zealand, the Court may refuse to make an order under section 104(2) for the return of the child if any person who opposes the making of the order establishes to the satisfaction of the Court—

(a) ...

(b) that the person by whom or on whose behalf the application is made— (i) ...

(ii) consented to, or later acquiesced in, the removal; or

(c) that there is a grave risk that the child's return—

(i) would expose the child to physical or psychological harm; or

(ii) would otherwise place the child in an intolerable situation; or ...

[6] Sections 105 and 106 of the 2004 Act implement articles 12 and 13 of the

Hague convention which provide:

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a

period of less than one year has elapsed from the date of wrongful removal or retention, the authority concerned shall order the return of the child forthwith...

Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of

removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation...

[7] It is well established that in Hague Convention proceedings the Court is not able to assess the underlying merits of where the child is better off, that the child’s place of habitual residence is presumed to be the appropriate forum for determining custody and access issues, and the overall emphasis is placed upon

the prompt return of a child wrongfully removed or retained.

[8] The standard upon which the mother has to make out any defence is the ordinary civil burden of balance of probabilities.

Acquiescence

Matters Not in Dispute

[9] The following matters have not been disputed:

i) The mother and Z left F for New Zealand on one-way

tickets on 19 August 2004. The father gave the mother 50 Euros before she left. It had been discussed that Z and the mother would return

to F in about 2 months time.

ii) Other than the 50 Euros given to the mother when she left, the father did not provide any financial support for Z after he left F.

iii) The mother is a New Zealander and her family live there. The father is

English but lives at this time in F. None of his family live there.

iv) The mother, in a telephone call told the father on 21 September 2004 that she and Z would not be returning to F. She confirmed

that in a text message the next day.

v) The mother and the father were in contact via telephone, text and email from the time Z and the mother left F and this continued

even after the mother’s advice that she would remain in New Zealand. The content of some of that correspondence is in dispute.

vi) In November 2004 the father sent the mother a birthday card in which he acknowledged their relationship was over.

vii) On or about 29 December 2004 after the mother and the father argued about telephone contact, the father emailed the mother saying:

"...I never consented to our son being in New Zealand for longer than the agreed two months".

The email did not mention Z returning to F. The mother

denies receiving that email until the father sent it to her again in

February 2005.

viii) Court action initiated by the father began in April 2005. Case Law

[10] It is accepted that "acquiescence" relates to a parent’s attitude after removal. The onus is on the mother to establish acquiescence and evidence of acquiescence has to be clear and compelling.

[11] Re A and Another (Minors) [1992] 1 All ER 929 involved a case where written correspondence and telephone calls were made and received. Balcombe LJ said:

"Acquiesce’ is not, in my judgment, apt to refer to a single expression of agreement taken in isolation from all surrounding circumstances".

[12] Stuart-Smith LJ stated:

"Acquiescence means acceptance and it may be either active or passive. If it is active it may be signified by expressed words of consent or by conduct which is inconsistent with an intention of the party to insist on his rights and consistent only with an acceptance of the status quo. If it is passive it will result from silence and inactivity in circumstances in which the aggrieved party may reasonably be expected to act..

If the acceptance is active it must be in clear and unequivocal words or

conduct and the other party must believe that there has been an acceptance."

[13] Lord Donaldson MR stated:

"In each case it may be expressed or it may be inferred from conduct, including an inaction, in circumstances in which different conduct is to be expected if there were no consent or, as the case may be, acquiescence. Any consent or acquiescence must, of course, be real."

[14] In Re C [1996] 1 FLR 414 Holman J at page 419 said:

"Consent (or acquiescence) "...needs to be proved on the balance of probabilities but the evidence in support of it needs to be clear and cogent. If the Court is left uncertain, then the defence under Article 13(a) fails". The Evidence

[15] In considering all of the evidence before the Court I find these factors to be of most importance:

i) The mother and Z traveled on a one-way ticket and there was therefore no return-ticket nor a definite return date.

ii) The mother told the father in a telephone call on 21 September 2004 that she would not be returning to F with Z and she sent a

text message to him the next day confirming that. The text message

said, inter alia:

"obviously u know where our son is I will never stop u! & that’s a promise. But as 4 u & in my heart we r finished!..But I’ll try 2 b civil

4 babys sake. I just want 2 b on my own..."

iii) The mother says that the father’s immediate response was that he wanted her and Z to return to F and that he could force her

to do so under the Hague Convention. She says – and it was not denied

by the father, that later he spoke to several of her family about coming to New Zealand, and he told her in a later phone call that he had been looking at New Zealand homes on the internet.

iv) The mother and the father continued to communicate in various ways but they disagree as to what was said. I have therefore relied on the written and dated material that has been produced and is not in dispute.

v) The father sent the mother a birthday card in November 2004 in which he appeared to accept that they would be parenting apart. He wrote in

the birthday card:

"you will always be a special person to me, your the mother of our Son! I wish it could be more my love is still the same as the day we started to talk. But I have to realise that love has to come from both sides not just mine. Sorry if I have let you down in any way, this was not my intention. My intention was only to make our life as a family more comfortable. Hope we can still have some good fun in the future with our son.

Love as Always, O."

vi) On the envelope the father wrote:

"I will bring your present with me. Love. Me."

He spoke of coming to New Zealand.

vii) The father sent an email to the mother on 29 December 2004 which the mother says she did not receive until February 2005. That email read:

"It would be very nice if you would reconsider the invite to the concert, it would mean a lot for me for my son to be there; it would be nice also for him to see the rest of his family who will also be at the concert. As already explained this is for Z’s future and his

security.

You promised never to stop me access to our son, not a nice thing to do on Christmas Day depriving me of talking to Z. I would

sincerely like to contribute to my son’s well being, but after all that has happened, I need to start to trust you again. You have to realise that you have taken our son Z away from his father and his

family home, here in F, where we were all living, on an agreed

holiday to visit your family for two months only. Now you say your not coming back and our relationship is over. You have to appreciate I never consented to our son being in New Zealand for longer than the agreed two months. You are not only depriving your

son of his father, you are also depriving me of my rights as a father of full access to our son, just by being in New Zealand. You have in fact

taken our son away from his resident family home, which was shared by us all without telling me that you would not return after the agreed two months, therefore denying me reasonable access.

Some five weeks ago I asked you to come up with some solutions to

our problem, which was not of my making, to try and resolve this situation, this you have not done. I feel therefore, this has to be put in writing, as all communications and decisions with regard to Z’s

well being. Before any financial payments can be made, we have to

have an agreement resolving these issues; I think you will find any payments to yourself would have to be registered by law.

What I am requesting is not unreasonable, in fact I think it is quite normal. If we are two mature adults, I think we can sort this out without too many problems. Lawyers and a legal direction will not be in the best interest for Z and our financial situation. I feel that

money would be better supporting our son. I just want to have a good

direction as far as our son Z is concerned and have a good friendship with you for Z’s sake, this is not his fault, he needs a mother and a father don’t you think.

Love to you both, with a big hug and many kisses for Z Boy!"

[16] The contents of this lengthy email indicated that the father wanted to make arrangements for Z’s welfare and he anticipated when that was resolved making payments to the mother. Given that the parents did not jointly own any property, the inference that I draw is that the only reason that he would have to make payments to the mother would be if she was caring for Z. It is significant that despite all the detail in his lengthy email, the father did not demand Z’s return to F but rather asked the mother to "reconsider" an "invite" to a concert that he was promoting in F. I accept that the father was aware of his legal rights at that

time.

[17] It is relevant to consider these exchanges against the background of the relationship of the parents. Theirs was not a relationship of very longstanding – in

August 2004, it was 2 years and 5 months since they had first met, and in that time they had been together in the same country for just 20 months. The parents met via the internet and Z was conceived within a few weeks of their first physical meeting. The mother and the father attempted to create a family unit so

that they would both play a full part in their son’s upbringing. There were obvious difficulties – their son was conceived when they barely knew each other, they came from different cultures and were living in a third culture. The mother chose to return to New Zealand and her family for the birth of their child. The father did not accompany her. The mother had a brief affair after Z’s birth. The relationship was not an easy one – the mother’s uncontradicted evidence was that three

months before she left F, they were no longer being intimate nor sharing the same bed.

Findings

[18] The email of 29 December 2004 is lengthy and detailed but it does not speak of a permanent return of Z to F. The tenor of the email strongly

supports acceptance of the end of the parent’s relationship and a frustration that there has not yet been an agreement about "access". The father reminds the

mother "You promised never to stop me access to our son." The father focuses on

"access".

[19] The father speaks of the mother having stayed on in New Zealand despite

him not consenting to that. Again I emphasise that he does not say that he requires

Z to be returned to F. He speaks of there being "our problem" but he does not say that the resolution of this problem requires Z to return to F. Nowhere in that email does the father say he does not accept the mother’s

decision to separate and remain with Z in New Zealand. Rather the father’s focus is summed up when he says that what he wants is as follows:

"I just want to have a good direction as far as our son Z is concerned and have a good friendship with you for Z’s sake..

...I would sincerely like to contribute to my son’s well being..."

[20] The father sent the mother a further email on 20 February 2005. The mother had advised that she had not received the December 2004 email and the father sent it to her again that day with an accompanying email in which he said:

"..You have not given any solutions as far as resolving a firm direction of where you think you are going to be living in the future. You have not given me details of the school you say Z is attending so I can contact them as

his Father. I still do not have the address of your Mother’s house, where you

say you are living with our son."

[21] The father contends that the emails of 29 December 2004 and 20 February

2005 are evidence of continuing discussions to try and remedy the situation. They do indeed show that the father was seeking some resolution but they do not show that the resolution the father was seeking involved Z returning to F. This

is also consistent with the contents of the card sent by the father in November

2004.

[22] It has been discussed in similar cases that it would be most unfortunate if parents were deterred from trying to make arrangements themselves when a relationship had broken down, for fear that the mere fact that they were trying to negotiate would count against them if Hague Convention proceedings were later initiated. However there is a difference between parents trying to make arrangements between themselves after a relationship breakdown, and a clear and distinct request by one parent for the other to return a child.

[23] I find in this case that the father was trying to negotiate a positive outcome in terms of his relationship with Z, but that he was doing that, having already accepted that Z would not be returning to live in F. I find that the

father’s comments in the November 2004 birthday card are consistent with this finding and are inconsistent with opposition to Z remaining in New Zealand. It

is relevant that this card was written two months after the mother’s advice that she

would not be returning.

[24] The father’s 29 December 2004 email, while containing the statement "you have to appreciate I never consented to our son being in New Zealand for longer than the agreed two months", did not demand, nor even request Z’s permanent return to F.

[25] To the contrary the father referred to an "invite" to attend a concert in F which other members of his family would be attending. That suggested temporary return or a visit by Z, to go to the concert and to see family.

[26] I find that that email, written some 3 months after the mother declared her intention to remain in New Zealand, was also inconsistent with any intention by the father to insist on a return to F. The father clearly wanted some arrangements made for Z to see him, and then, he implied, he would make some arrangements for Z’s financial support. The father wanted some arrangements made for

contact.

[27] Each case must be considered individually and the actions and/or inaction of the parents must be evaluated in the context of their relationship. Behaviours that in some relationships would clearly be acquiescence, may, in other relationships be insufficient to indicate acquiescence.

[28] The relationship between this mother and this father was somewhat unusual and difficult – they met on the internet, they conceived a child within a few weeks of meeting, they were not together for the child’s birth, when together they were living away from their homelands, and far from any family support, and they had financial difficulties.

[29] Against that background I find that in all of the circumstances responding in

the way that he did to the mother’s advice that she would not be returning to F with Z, the father acquiesced to his retention in New Zealand. It is not one single act of acquiescence that has persuaded me but rather all of the father’s responses considered against the background of the parent’s relationship. In particular I note that apart from his initial response:

i) The father did not demand Z’s return to F.

ii) The father accepted the end of his relationship with the mother, and must have accepted that the mother would not therefore return to

F as her only connection with that country was her relationship with him.

iii) The father indicated he may come to live in New Zealand.

iv) The father wanted to know about the schools Z would attend in

New Zealand.

v) The father invited the mother and Z to F to attend a concert.

vi) The father wanted to arrange for Z to have "access" with him.

vii) In correspondence produced to the Court the father never demanded

Z return to F. Rather he spoke of wanting to have "access."

[30] The mother clearly believed that the father had accepted her decision and she maintained contact with him and in so doing, Z also did. The mother’s belief

was reinforced by the father’s actions which were inconsistent with those of a parent seeking the return of a child.

[31] Having considered the material available I find that different conduct would

have been expected from the father if he had not acquiesced. On the evidence available I find the father’s actions are inconsistent with those of a parent seeking the return of a child, and are inconsistent with those of a parent who did not accept the decision made by the other parent.

[32] Accordingly I find that the ground specified in s 106(1)(b)(ii) Care of

Children Act 2004 has been made out.

Harm

[33] Having been satisfied that the father has acquiesced, it is not necessary to consider the second ground advanced by the mother, but if required to, I would not have found that second ground had been established. In my view, having regard to the test referred to in Damiano v Damiano [1993] NZFLR 548 and the

well established tenet that the abducting parent cannot rely on a harmful situation which has been created by that parent herself, there is insufficient evidence to support the mother’s claim.

Court’s Discretion

[34] Although the defence has been made out by the mother, the Court has a discretion whether or not to order the child’s return. I accept that this discretion must be exercised having regard to the philosophy of the Convention and the effect on Z of having his welfare issues determined in F or in New Zealand.

[35] I have given consideration to these matters and I find that the facts of this case do not support a return to F. I have considered in particular the likely situation in F for Z (and his mother) if a return order were to be made.

There is some uncertainty about the situation particularly in regards to the

mother’s ability to remain in F and be able to support herself. I have considered what it may mean for Z if he had to return immediately to F and I conclude that

because of his young age, that would be traumatic for him when his mother may not be able to remain with him for some time.

[36] I have also considered the philosophy of the Convention and whether that would be compromised if a return order is not made. In all of the circumstances, I find that having concluded the father acquiesced to Z’s removal, the philosophy and purposes of the Convention will not be breached by refusing a return order.

[37] The application for the return of Z to F is accordingly refused.

J A McMeeken

Family Court Judge

Signed at am/pm on October 2006