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New Zealand Central Authority v Collins [2012] NZFC 2694 (1 May 2012)

Last Updated: 7 January 2019

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS

11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE WWW.JUSTICE.GOVT.NZ/FAMILY/LEGISLATION/RESTRICTIONS.

IN THE FAMILY COURT AT HASTINGS

FAM 2012-020-00083 [2012] NZFC 2694

BETWEEN NEW ZEALAND CENTRAL AUTHORITY ON BEHALF OF AJ ABOUDI

Applicant

AND MS COLLINS Respondent

Hearing: 12 April 2012 (Heard at Napier)

Counsel: Mr A Davies and Ms N Booker for the Applicant

Ms C Hickman for Respondent

Judgment: 1 May 2012

RESERVED DECISION OF JUDGE P CALLINICOS [Hague: Rights of Custody and Defences]

NEW ZEALAND CENTRAL AUTHORITY ON BEHALF OF AJA V HKC FC HAS FAM 2012-020-00083 [1

May 2012]

Introduction

[1] Matta and Yunus Aboudi were born in Brisbane Australia in April 2009. Their father, the Applicant, was born in Morocco and holds Moroccan and New Zealand citizenship. He remains resident in Wallangara, Queensland. The Respondent mother is a New Zealand citizen.

[2] Without the express knowledge or consent of the Applicant, the Respondent departed Australia with both children on 8 June 2011. At no stage did she advise the Applicant that she had taken the children to New Zealand.

[3] There is dispute as to circumstances surrounding the circumstances in the four weeks prior to removal and three months following and the legal implications arising. It is the father’s case he lost contact with the Respondent by virtue of her telephone suddenly becoming disconnected and believed the children to be in Australia until he received a letter from the Child Support Agency in Australia on 17

September 2011 indicating the children were now resident in New Zealand.

[4] Shortly after receiving that letter he approached a lawyer and an initial application for assistance of the Convention on the Civil Aspects of International Child Abduction (more commonly referred to as the Hague Convention) was completed on 14 October 2011. However, due to the quality of that application the process had to be recommenced and it was not until 13 December 2011 that the application was finally forwarded to the Australian Central Authority. This led to the current proceedings being commenced. There is no dispute between the parties that any delays from 17 September 2011 were not the fault of anything done or omitted to be done by the Applicant.

[5] On 24 February 2012 a formal application was filed in the New Zealand Family Court pursuant to the provisions of Subpart 4 of Part 2 of the Care of Children Act 2004 (COCA/the Act). The purpose of such Subpart is to implement into New Zealand law the provisions of the Convention, which appears as Schedule

1 to the Act.

[6] This decision determines that application.

Factual Background

[7] The parties first met in New Zealand in 2004 and later moved to Australia in

2006. The Respondent’s parents had previously moved there and have been supportive of their daughter throughout, including in the removal. The parties married in Queensland on 5 April 2007 and separated on 29 September 2009.

[8] On 29 October 2009 the parties met to discuss arrangements required following the breakdown for their relationship, including the ongoing care of the twins1. It was agreed that the Respondent would have the children in her care from Saturday mornings through until the morning of the following Thursday, with the exception of arrangements for the Christmas and New Year periods. The Applicant was to care for the twins each week from Thursday morning until Saturday morning and at other times agreed between the parties. It is said there was an agreement to that effect signed by the parties, although this was not presented in evidence.

[9] Those care or contact arrangements were put into place and, by and large, operated well until January 2010 when the Applicant suffered issues with his mental health, in the nature of depression or such like. Although for a period the Applicant did not the children, it is clear he made requests to see them but the Respondent mother was reluctant until her concerns over the Applicant’s state of health could be ameliorated. The evidence is strong in indicating that the Respondent was assertive in all care or contact arrangements, and indeed matters of guardianship.

[10] For the period between January and March 2010 arrangements were somewhat erratic and the father’s care of or contact with the children was not working on the weekly basis envisaged by the original agreement.

[11] The Respondent presented into evidence diary notes she took at various stages from separation until she moved to New Zealand. These provide assistance in gleaning the events of the time, the intentions of the parties and so forth. It is

1 See Respondent’s Diary Notes p 91 Bundle

apparent from those diary notes that in January 2010 the Applicant was wishing to reinstate the agreed care arrangements but that the Respondent was reluctant.

[12] Both parties sought the assistance of Legal Aid Services in Queensland from which they were referred to mediation. In a diary note made by her on 22 March

2010 the Respondent recorded she was awaiting the outcome of mediation to see whether or not the Applicant appeared ‘fit’ to have the children in his care for two days a week.

[13] Matters eventually reached mediation where the Respondent was represented by a solicitor. The mediation outcome was produced before me in evidence, although I must record some surprise that such a significant document was not produced earlier despite the Respondent and her Counsel possessing it. There were issues around what occurred at mediation and the outcome of it that are material to some of the determinations required of the Court. The mediation produced a comprehensive set of agreements between the parties detailing a graduated re- establishment of the unsupervised care arrangements that had previously existed since separation, contact arrangements for the festive period, the parties’ birthdays and other special days.

[14] The mediation agreement also recorded an important outcome whereby the parties agreed that the children were not to be taken out of the Commonwealth of Australia unless the parties both agreed in writing. This important point had not previously been mentioned by the Respondent in her affidavits, despite her holding a copy of the agreement. It included agreement that the collection point or change over point for contact or care would occur at the father’s residence and that each party was to keep the other advised of any change to their mobile telephone number. All of those aspects are important in determination of factual issues which follow.

[15] Again, the father resumed a significant role in the care of the children whereby he was having the children for three days and two nights each week. While the Respondent has stated this arrangement was erratic in implementation the overall evidence suggests it was a reliable and consistent arrangement.

[16] In September 2010 the Respondent’s grandparents passed away within six hours of each other, necessitating her return to New Zealand. She sought and obtained permission from the Applicant for the children to travel to New Zealand. Such agreement was recorded in writing. The Respondent and children travelled from Australia to New Zealand on 28 September 2010, returning on 7 October 2010.

[17] The father’s care arrangements recommenced immediately and continued until around early May 2011. At this point the Applicant contacted the Respondent and told her that he had been made redundant from his job and had obtained alternative employment but it was some three hours travel time away. He said this necessitated him vacating his apartment. They had a discussion on this point on Saturday 7 May 2011 and he discussed when he could next see the boys2.

[18] Following the Applicant’s loss of employment there is significant dispute over precisely what occurred from that point in time until the mother’s departure with the twins to New Zealand on 8 June 2011. In essence the father says he attempted to ask to see the boys, his request was declined and that he had last telephoned her in early June. The mother claims the father “washed his hands” of the boys and made no effort of any kind to have any contact with them during that period. Each says they attempted to contact the other, without success. From her perspective she regarded the father as having said goodbye to the children and that she took this as some permanent arrangement.

[19] At the same time as the father’s redundancy impacted upon his availability to the twins, the mother was also encountering some personal difficulties. It transpires she had some level of financial pressure upon her, although there have been no details provided as to precisely the cause or extent of those difficulties. In April

2011 she applied to the Insolvency and Trustee Service Australia for bankruptcy. She was notified on 4 May 2011 that she had become bankrupt. She was working as a nurse at that stage and continued to work up until the day of departure from Australia. She deposes that on 6 June 2011 she had a breast screen and that some lumps had been found. Understandably this caused her some stress, especially as she is also HIV positive.

2 See Respondent’s Diary Notes p 101 Bundle

[20] It is her case that a combination of the effects of her financial and health situations led her to make an immediate decision to depart Australia. She obtained the assistance of her parents for the purposes of purchasing tickets and left with the children on Wednesday 8 June. Her father then returned to Australia and packed up all her belongings and arranged for them to be shipped back to New Zealand, again at their cost. The Applicant had no knowledge of these health issues, or the Respondent’s decision to remove the children from Australia. It is unclear whether he had any knowledge of the bankruptcy. While her sparse diary notes make no reference to advising him of these circumstances, it is notes that on 7 May 2011 the Applicant offered to pay her money ‘on top of child support’. Given the dire circumstances alleged by her it is somewhat surprising that she ‘refused’ his

generous offer telling him instead to go through Child Support channels.3

[21] Upon removing the children to New Zealand she rather unfortunately unilaterally changed the children’s names. She states she did not do this to deny their heritage, a claim which is somewhat difficult to accept given she removed key indicators of their Moroccan heritage. Even in her affidavits she referred to the boys by her selected names, rather than their actual names. Whatever her motivation, these actions were an affront to the Applicant’s guardianship rights and the rights of the children.

Law

[22] The Convention is implemented in New Zealand law through s 94 COCA. Article 1 of the Convention provides that one of the objects of the Convention is to secure the prompt return of children, wrongfully removed to, or retained in, any Contracting State.

[23] There is no dispute that Australia and New Zealand are Contracting States.

[24] The objectives and purpose of the Hague Convention generally were considered by the Supreme Court in Secretary for Justice v HJ [2007] 2 NZLR 289. The Convention has two objectives: first, to seek the prompt return of children

3 Ibid n 2 above

wrongfully removed or retained in any contracting state, and secondly, to ensure the rights of custody and access under the law of one Contracting State are effectively respected in other contracting states. The Convention enables the country of the child’s habitual residence, as opposed to the country where the child was wrongfully removed or retained, to determine care and contact arrangements for the child. This is the purpose of the convention.

[25] Section 105 provides:

(1) An application for an order for the return of a child may be made to a Court having jurisdiction under this subpart by, or on behalf of, a person who claims -

(a) that the child is present in New Zealand; and

(b) that the child was removed from another Contracting State in breach of that person’s rights of custody in respect of the child; and

(c) that at the time of that removal those rights of custody were actually being exercised by that person, or would have been so exercised but for the removal; and

(d) that the child was habitually resident in that Contracting State immediately before the removal.

(2) Subject to section 106, a Court must make an order that a 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.

[26] The Respondent responsibly accepted that three of the four jurisdictional prerequisites found in s 105 are established. Such concession is appropriate given the evidence establishes:

i. the children are present in New Zealand, and

ii. the children were removed from another Contracting State, namely Australia, in breach of the Applicant’s rights of custody in respect of a child, and

iii. the children were habitually resident in Australia immediately before the removal.

[27] Of the s 105 grounds, the Respondent argues the Applicant is unable to establish the onus upon him to prove the ground under s 105(1)(c), namely that at the time of the removal the father’s rights custody were not actually being exercised by him and would not have been exercised by him even if the removal had not occurred. If the Applicant fails to meet the onus to establish this ground then his application for an order of return would fail.

[28] If the Applicant establishes the s 105 grounds the Court may refuse to make an order of return only if the Respondent establishes any of the grounds in s 106 that. These grounds are sometimes referred to as the “Hague defences”. The onus is upon the Respondent to establish any one of these grounds.

[29] Four grounds are argued;

1. the Applicant consented to the removal of the children, or later acquiesced in the removal; s 106(1)(b)(ii), or
   

ii. at the time of removal the Applicant was not actually exercising custody rights; s 106(1)(b)(i)

iii. there would be a grave risk that the children’s return to Australia would expose the children to psychological harm; s 106(1)(c)(i), or

iv. there would be a grave risk that the children’s return to Australia would otherwise place the children in an intolerable situation; s106(1)(c)(ii).

Evidence and Process

[30] In accordance with the approach generally taken in Hague cases, I have before me affidavits sworn by both parties. I have received copies of three other relevant documents which were not produced earlier. No witnesses were examined.

[31] The approach of the Courts to assessment of affidavit evidence was discussed by the Court of Appeal in the case of Basingstoke v Groot 4 in which it was stated that decisions upon conflicts of evidence are resolved by the taking into account of such factors as any independent extraneous evidence might display, the consistency of evidence (both internally and externally) and any inherent probabilities within the evidence. The Court emphasised that where it is assessing parental purpose on questions of habitual residence the Courts would be inclined to attach more weight to the contemporaneous words and actions of a parent, and any other independent evidence, than to their bare assertions and evidence as to the position.

[32] The Court stated that evidence is assessed in the “normal way”, namely that the Court must decide on the balance of all of the evidence whether the party has proved the matters of which they have the onus, assessed on the balance of probabilities. The approach of looking to the actions of parties or to any “independent” evidence, such as documentation, is often essential in determining factual issues in situations where examination of deponents is not possible.

[33] I did not find the Respondent’s depositions credible. There were substantial contradictions between what she deposed in her affidavits, her actions, documents and her ‘diary notes’. She said these diary notes were written every few days, an aspect apparent from reading them as some contain use of language indicating they were made reasonably proximate to events. Others appear to have been written some time after the events and have the distinct quality of being self serving ex post facto accounts of events as she would wish them to appear. There were some significant gaps in time between entries.

4 Basingstoke v Groot [2007] NZFLR 363 at [39]

[34] The consequence of these observations is that I had reservations as to the credibility of some of her sworn statements and preferred those of the Applicant. I will later refer to express instances of the disparity between her actions and statements.

Analysis

Was the Respondent Exercising Rights of Custody?

[35] For the purposes of s 105 I must determine whether as at the time of removal,

8 June 2011, the father’s “rights of custody” were actually being exercised by him, or would have been exercised but for the removal. As indicated, the onus is on the Applicant to establish that jurisdictional criteria.

[36] I am also required to determine as a matter of fact the same issue where it arises as a “Hague Defence” under s 106(1)(b)(i), where the onus vests upon the Respondent.

[37] I assess the issue from a factual perspective with the onus upon the Applicant as, of course, the defences in s 105 arise only if all s 105 grounds are first established. Determination of this factual issue will resolve either the s 105 ground or the defence in any event.

[38] The starting point is to consider what is meant by “rights of custody” within the context of the Convention. It is accepted by Counsel that a leading decision on that point is Chief Executive of the Department for Courts v Phelps5 in which the Court of Appeal held the Convention was concerned with “rights of custody” and not with “custody”6 The Court held that a breach of any one of the bundle of distinct rights involved with custody may provide a basis for a finding of wrongful removal. The distinct right of custody which was in issue in that case was the mother’s right to determine her children’s place of residence.

5 _{Chief Executive of the Department for Courts v Phelps [1999] NZCA 198; [2000] 1 NZLR 168}

6 At para [21] and [22]

[39] Article 5 states that for the purposes of the Convention ‘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”.

[40] For the purposes of subpart 4 of the Act the term as defined in s 97 as:

97 Rights of custody defined

For the purposes of this subpart, rights of custody, in relation to a child, include the following rights attributed to a person, institution, or other body, either jointly or alone, under the law of the Contracting State in which the child was habitually resident immediately before the child's removal or retention:

(a) rights relating to the care of the person of the child (for example, the role of providing day-to-day care for the child); and

(b) in particular, the right to determine the child's place of residence.

[41] Both s 97 and Article 3 emphasise that what may be included within the term “rights of custody” requires reference to the law of the contracting state in which the child or children were habitually resident immediately before removal, in this case, Australia.

[42] In MT v DH7the High Court stated :

[12] Therefore, rights of custody are any of the bundle of rights relating to the care of the child and include the right to determine place of residence. Whether there are such rights of custody depends on the law of the country in which the child was “habitually resident” before the removal. Here that is Australia.

[43] In that decision Mallon J considered the relevant statutory provisions of Australia, found in the Family Law Act 1975. Her Honour referred to the same provisions that were tendered before me in an affidavit provided by the Commonwealth Attorney-General’s Department in Canberra. I therefore repeat the determinations of the High Court as to what is meant by “rights of custody” according to the Australian law;

[13] The relevant statutory provisions in Australia are found in the Family Law Act 1975 (Australia). Section 111B(4)(a) of that Act provides that for the purposes of the Hague Convention:

7 MT v DH (HC Wanganui) CIV 2008-483-297, 28 November 2008 at [12]

[E]ach of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any order of a court for the time being in force;

[14] Rights of custody therefore depend on whether parental responsibility has been removed by order of a court. There is a definition of “parental responsibility” in s 61B of that Act which provides:

In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

[15] Who has parental responsibility is set out in s 61C which provides: (1) Each of the parents of a child who is not 18 has parental

responsibility for the child.

(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.

(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

[44] The view of the Australian Attorney-General’s Department is that as there were no existing Australian Court Orders in relation to the subject children then the Applicant retained parental responsibility under Australian Law in relation to those children and rights of custody in relation to them for the purposes of the Hague Convention.

[45] In the situation before me the Respondent is not disputing the Applicant held “rights of custody” in respect of the twins but rather whether he was exercising them. The determination is purely a factual one according to the particular circumstances of the instant case.

[46] It is my determination that the Applicant was exercising rights of custody as at 8 June 2011 (being the date of wrongful removal) and, but for that removal, would have been exercising them.

[47] My determination is based on a number of reasons. The first is that although there are many factual disputes between these parties I preferred the Applicant’s

deposition to those of the respondent. In short, even on an analysis of the evidence on a paper basis I had doubts about the credibility of much of her evidence.

[48] I am satisfied from the evidence, assessed to the civil standard that at the time of removal the Applicant had been wishing to see the children and that his ability to do so was hampered by two factors. The first was his sudden loss of employment with the consequent need to move some distance away and re-establish himself. The timeframe from loss of employment until removal was only four weeks and it was understandable that he would not be able to continue his weekly care of the children. Secondly, I determine that he attempted to see the boys but his attempts were rejected by the Respondent, a fact within her control rather than his.

[49] The Respondent sought to liken the present case to the situation in the Family Court decision McManus v McManus where the Court declined an application for return8. The case is quite distinguishable on the material facts. In that case after separation the father wrote in clear terms that he wanted a ‘total’ separation and no contact with his children. While he had mental health issues he had clear knowledge that the mother wished to remove the children from the habitual residence, he received advice of a form of Court application to that effect and took no action. In those circumstances he was found not to have exercised his rights. Those facts are

quite distinguishable from those before me.

[50] I reject her assertion that the Applicant “washed his hands” of these children. There was no evidence to support such a conclusion. The context of what was occurring at that time cannot be overlooked or understated, as the mother’s case seeks to do. The context is that the father had suddenly been made redundant and had managed to secure employment which was some three hours travel time away from the children. That being the case it is inevitable that matters of his care or contact with the children would require fresh discussion to accommodate changes that have occurred in his world, for reasons apparently beyond his control. The evidence shows that he did attempt to have contact with his children and that this was rejected by the Respondent. He was immersed in starting a new job some three hours drive away and locating new accommodation. It was not unreasonable that he

8 McManus v McManus [2001] NZFLR 1

sought to obtain her agreement to modify arrangements to permit an involvement with his children commensurate with the travel difficulties.

[51] Her diary notes of 7 and 9 May support this determination and are telling as to her lack of support to him during what must have been a difficult period. On Saturday 7 May 2011 she expressly records that he asked to see the boys ‘on Saturday’, which must refer to 14 May. Her notes do not show if she agreed, but they go on to show that she rejected his other requests including that he store some items with her and that he pay her some money in addition to child support. She refers to the mediation agreement not being considered, namely the weekly care arrangement and the lack of consideration this had to her job and the boys’ routine. This reference displays that she was not enamoured by the fact the care arrangement, which assisted her work schedule, had been unsettled by the Applicant’s loss of employment. The note of 9 May confirms that he again wished to see the children and that her response was to again repeat how he had ‘broken the legal order’ and how things were ‘about to get messy’. Indeed they did.

[52] These notes confirm that the Respondent’s entire focus was upon the impact of the Applicant’s loss of employment upon the Respondent and how she saw that as breaching the mediation agreement. Significantly, it is not the Applicant who, as suggested, waived his rights of custody but the Respondent who denied his ability to modify the exercise of his rights to accommodate the vocational realities confronting him.

[53] The diary note records that ‘later that week’, which I take would mean about

12 or 13 May, the Applicant visited the boys, gave the boys some coins and kissed them. This was the last time he would see his sons, and not for any lack of interest on his part.

[54] The Respondent’s contention that a lack of contact for four weeks amounted to a non-exercise of requisite rights would, if successful, have quite significant consequences. If correct this would have the effect of meaning that any removal of the children from Australia by her would thereby be lawful. That is not an outcome that is merited by the circumstances of this case. His difficulty in maintaining a

relationship with the children for the short period of four weeks in the context I have described could not endorse such an outcome.

[55] In addition, he also maintained rights of custody as at the date of removal by his clear position on issues of determination of the children’s place of residence. Similarly, the Respondent sought to argue that the Applicant somehow ‘washed his hands’ of involvement in respect of place of residence.

[56] The evidence is strongly supportive of a finding to the contrary. Indeed it would be difficult to find a stronger example of a situation where a parent had so clearly and unequivocally asserted rights of custody in this respect. From the very time of separation, the Applicant asserted his right of involvement in issues over the children’s residence. This was confirmed in a letter sent by the Citizens Advice Bureau and Gold Coast Legal Service Inc. to the Respondent on 1 April 2010 in which the Advice Bureau specifically and expressly raised the issue of the Hague Convention and emphasised that the children could not be removed from Australia without the Applicant’s authority or knowledge in the future. Subsequently, in the mediation that took place on 6 July 2010 the parties expressly agreed that the children were not to be taken out of Australia unless both parties agreed in writing. Further, in September 2010 the Respondent took the children back to New Zealand for her grandparents’ funeral after having obtained the written approval of the Applicant.

[57] Accordingly, against that wealth of evidence, her suggestion that suddenly in May 2011, a mere eight months or so after she had previously received the father’s written consent to travel, he had forfeited such rights defies all credibility.

[58] Accordingly, I am satisfied the Applicant has established the onus upon him that at the time of the wrongful removal on 8 June 2011 he was exercising rights of custody within the law of the State in which the children were habitually resident immediately prior to removal. Further, but for that removal he would have continued to exercise those rights. That finding also serves, from a factual basis, to determine the attempted utilisation by the Respondent of the Hague defence found in s

106(1)(b)(i).

Consent or Acquiescence

[59] The Respondent contends that before the children were removed from Australia there had been an inferred consent to that removal from the Applicant followed by acquiescence to the removal after it had occurred.

[60] As was stated in Re: A (minors) (abduction: acquiescence):9

“...the difference between “consent” and “acquiescence” is simply one of timing. Consent, if it occurs, precedes the wrongful taking or retention. Acquiescence, if it occurs, follows it.”

[61] The most widely accepted test as to what is required to establish consent derives from the English High Court (Family Division) in Re: K (Abduction: Consent),10which may be paraphrased as holding:

1. any consent must be proved on the balance of probabilities, by the person relying upon that defence.
   
2. the evidence required to establish consent must be clear and cogent, and must be real, positive and unequivocal.
   

iii. if a Court is left in a state of uncertainty then the defence will fail.

4. the Court may be satisfied that consent has been given even though it is not in writing; and
   

v. there may be cases where consent can be inferred from conduct.

[62] As to matters of inference, the Court of Appeal in KMA v Secretary for

Justice11 stated:

9 _{Re: A (minors) (abduction:acquiesence) [1992] 1 All ER 929 at 943}

10 _{Re: K (Abduction:Consent ) [1999] 2 FLR 212}

11 KMA v Secretary for Justice [2007] NZCA 223; [2007] NZFLR 891 at [47], [48] and [49].

[47] ...a court may, in appropriate circumstances, infer the necessary consent from conduct, as occurs often enough in other contexts. But the evidence must be “clear and cogent”: see Re C (Minors) (Abduction: Consent) [1996] 3 FCR 222 at 228 (FD). In the present case, the conduct relied upon does not support the inference, particularly when it is viewed against the background of other conduct of the respondent which shows that he did not consent to the removal. An example is his seeking of legal advice in February 2006 as to how he could prevent the applicant from removing the children from Australia.

[48] Ultimately, then, this was a matter for assessment on the evidence as a whole...

[49] The same applies to acquiescence. [Counsel for the abducting parent] took us to the evidence in an endeavour to persuade us that a finding of acquiescence should have been made. She argued in particular that the respondent delayed for four and a half months after having learnt of the children’s removal before making the application for their return. This, she said, was sufficient to establish acquiescence.

[63] The Respondent’s argument was not supported by the evidence. Her case was very much founded around the same factual events that led her to argue that the father had not been exercising his rights of custody.

[64] The approach to assessment of matters of acquiescence derives primarily from the House of Lords decision of Re: H (Minors) (Abduction: Acquiescence)12. That approach has been adopted in New Zealand case law including the decision of JHL v Secretary for Justice13. In JHL v Secretary for Justice Ronald Young J stated:

[4] After detailing the background the Judge turned, firstly, to the question of acquiescence. He identified four applicable “principles” as relevant from such cases as Re H (Minors) (Abduction: Acquiescence) [1997] 2 All ER

225; B v B [1998] NZFLR 337 and Secretary for Justice v Ranginui (Family

Court, 047-2-098, 6 March 1998) He said: [13] . . .

[a] The question whether the wronged parent has acquiesced in the removal of the child depends on that parent’s actual state of mind.

[b] The subjective intention of the wronged parent is a question of fact for the trial judge in the light of all the circumstances of the case, the burden of proof being on the abducting parent.

12 _{Re: H (Minors) (Abduction: Acquiescence) [1997] UKHL 12; [1998] AC 72}

13 JHL v Secretary for Justice [2008] NZFLR 54 also report as L v Secretary for Justice (2007) 27

FRNZ 454

[c] The trial judge in reaching a decision on that question of fact will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his/her mere assertions in evidence of his/her intention.

[d] There is only one exception. Where the word or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his/her right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.

[65] The significant points to be considered when assessing matters of consent or acquiescence are that, first, any evidence must be clear and cogent (whether or not consent or acquiescence is being argued) and, secondly, that where consent or acquiescence is said to be inferred the need for clear and cogent evidence is not in any way diminished. Thirdly, it is for the trial Judge to assess the subjective intention of the “wronged parent” in light of all the circumstances of the case, noting that the onus rests on the abducting parent. Fourthly, when considering such questions of fact trial Judges will be inclined to attach more weight to contemporaneous words and actions of a wronged parent than to their mere assertions in the evidence.

[66] Adopting the approach from those learned authorities, it is my determination there is no clear and cogent evidence that the Applicant acted in a way which could either infer a consent permitting the removal of the children, or later acquiesced in it.

[67] The Respondent’s Counsel correctly submitted that reference must be had to whether the “wronged” parent has accepted a particular state of affairs without in any way protesting or challenging those state of affairs. The level of acceptance, or failure to oppose, must be assessed having regard to whether that person was possessed of knowledge of the planned removal (in the case of prior consent) or actual removal (in the case of acquiescence). In the circumstances before me there was no evidence, of any kind, which could have alerted the Applicant to the possibility the children were about to be removed. There is a significant paucity of evidence of a clear and cogent kind to suggest that any inference of consent can be made. Again, one must return to the circumstances at the time, which I have

outlined in my determination of the exercise of rights of custody. Over this small period of four weeks between his last point of contact with the children and their removal, there is not one skerrick of evidence of a consent, whether expressly or by inference, to something he had no knowledge of.

[68] In respect of acquiescence, the Respondent argues the Applicant accepted the wrongful removal by his alleged failure to do anything to try and locate her or the children. In the factual context of this case such proposition carries with it some concerning implications. If correct, the proposition would mean that an obligation falls to the innocent party, who has no actual knowledge of the removal, to somehow guess the children have been removed to some unknown place and set about locating them, while no obligation or responsibility falls upon the party who has acted in contravention of the other parent’s rights to do anything. I reject the proposition both for the lack of evidence in support and for the implications deriving from it.

[69] In the situation before me there is a considerable paucity of evidence as to what precisely occurred from 8 June 2011 until the father received the letter from the Australian Child Support Agency demanding child support be paid for children who were, unbeknown to him, in New Zealand. The mother has suggested that the father ought to have realised earlier that because she could not be contacted then she must have removed the children to New Zealand. She stated that he ought to have tracked her through her parents by utilising the New Zealand telephone book.

[70] I reject the proposition that such inaction could amount to acquiescence. It is merely a proposition, it is not clear and cogent evidence of acquiescence. As with the contention of consent it relies heavily upon notions of telepathy. The Respondent was asking the Court to speculate to a high degree as to the Applicant’s intentions and what he may or may not have done during that period. As stated, the evidence was so sparse that it would be inappropriate to draw inferences from the particular silence.

[71] Accordingly the Respondent has failed to meet the onus upon her to establish the ground of consent or acquiescence under s 106(1)(b)(ii).

Grave Risk

[72] The Respondent argues there would be a grave risk that the twin’s return to

Australia would expose them to either physical or psychological harm.

[73] She accepts that if the children were ordered to return to Australia she would travel with them. Her argument is that the children would be likely to suffer psychological harm as a result of her being in a country where she is fearful of the Applicant. She contends the children will also suffer harm as a result of the Respondent being forced to return to a country where things will be most difficult for her.

[74] In the High Court decision of Coates v Bowden14 Winkelmann J summarised both the level of the psychological harm that must be established and the approach the Court ought to take in assessing how much of that psychological harm may be the very result of a Respondent’s wrongful removal of a child. At paragraph [45] she stated:

[45] In considering afresh the issue of whether the grave risk defence has been made out ..., I take into account the following:

(a) The risk must be a grave risk, and the psychological harm must be substantial and more than merely transitory. In particular, it must be more than simply the inevitable stress which occurs or is caused to a child in the circumstances where the abducting parent and the children are uprooted from a situation in which they may have become settled, and forced to return to another: Clarke v Carson [1996] 1 NZLR 349; (1995) 13 FRNZ 662..

(b) ...

(c) An abducting parent cannot create a situation of potential psychological harm and then rely on it to prevent the return of the child. In C v C (minor: Abduction: Rights of custody abroad) [1989]1 WLR 654; [1989] 2 All ER 465, Butler-Sloss LJ said at 471, when speaking of a defence argued on the basis that the abducting mother would refuse to return with the child, which would cause grave psychological harm to the child:

“If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied on by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four

14 Coates v Bowden (2007) 26 FRNZ 210 at [45]

through the Convention, at least in respect of applications relating to young children.

[75] In a similar vein the High Court in Clark v Carson15 commented that wrongful removal of children will inevitably cause stress to them and that such stress may be substantial and may have psychological effects. Such consequence is of relevance to assessing the purpose of the Convention; Elias J said:

If the purposes of the Hague Convention are not to be wholly eroded it is necessary to recognise that the situation in which children who have been removed wrongfully find themselves will almost inevitably cause stress to them. Often that stress may be substantial and may have psychological effects. For that reason the standard set by the Convention and the section is high and is stringently tested.

[76] Such authorities highlight that any risk of psychological harm must be established as being “grave”. The psychological harm must be a “weighty”, it must be substantial rather than trivial. The harm must be more than the natural consequence of the disruption to the child’s life that accrues by virtue of the very removal and return that is in question.

[77] Against those authorities the factual issue is whether, if the children were returned to Australia they would suffer either physical harm or psychological harm as a result of being returned to that country.

[78] The evidence does not support a conclusion that there would be a grave risk that the children would be exposed to either physical or psychological harm if returned to Australia. I was left with some concern regarding the veracity of the Respondent’s allegations as to the nature and extent of family violence. In her affidavit evidence she detailed a wide range of alleged abuse including derogatory and name calling, threats of harm, physical assaults and psychological abuse of various kinds. The Applicant has denied these allegations. While there was a catalogue of incidents outlined by her, none of those instances were referenced by point of time, meaning I was unable to ascertain precisely when it is that she alleges these events occurred. Timing is important.

15 Clark v Carson (1995) 13 FRNZ 552, at 667

[79] In a situation where she has presented a list of specific types of abuse but with a lack of specificity of dates and where the Applicant denies the events, I have looked to the extraneous evidence that has been presented.

[80] There are a number of documents that assist. The first is that the Respondent tendered before the Court a letter from a Dr Rachel Daniels. The letter is undated but refers to a consultation on 22 October 2010, a year after separation. Dr Daniels first consulted with the Respondent in October 2008. On 22 October 2010 Dr Daniels consulted with the Respondent following the breakdown of the marriage and in that consultation the Respondent said she was fearful for the wellbeing of herself and her sons, that she was having nightmares, that her boys were “going to die”, and she felt “verbally threatened by her husband, and fearful that he was going to remove the boys from her care”. Beyond that statement there was no tangible medical evidence provided by Dr Daniels that corroborated in any cogent way anything of a medical nature, such as evidence of injuries and so forth. The letter makes reference only to psychological type abuse but certainly nothing of any physical kind which the Respondent has gone to some length of alleging in her affidavit. It must be noted that the consultation between the Respondent and Dr Daniels occurred over a year after separation. Along with the other evidence indicating the Respondent is an assertive person, it is reasonable to conclude that the Respondent was not at the time of consultation then subjected to significant pressure from the Applicant. In other words she was free of direct influence from him and it is therefore surprising that no mention was made by the Respondent to her doctor of the wider range of physical abuses that she now alleges.

[81] Secondly, the Respondent tendered some letters from support people. However, I am unwilling to place any weight upon such letters as they are unable to be tested in any way and do not carry the “weight” that an affidavit would. In addition none record direct observation of violence by the Applicant.

[82] Thirdly, there is significant evidence derived from the Respondent’s own diary notes and also her actions at various times, both of which mitigate heavily against the claim that there is a grave risk that the children would return to an environment which carry with it a risk of physical or psychological harm.

[83] Commencing with the diary notes. In presenting her diary notes the Respondent said “I kept this diary because many people I spoke to about the problems I was having told me I should keep a diary as a record of events”. Given this stated purpose for keeping the notes it is reasonable to infer that any significant events, problems or concerns were recorded and that no significant relevant events were omitted. While these diary notes traverse a period from October 2009 when the parties separated until the date of departure there are significant gaps in time throughout that period where no notes were made.

[84] The diary notes disclose that there were at times arguments between the parties but certainly there are no events recorded within the diary notes that could remotely support a conclusion that there were occurrences from the time of separation in October 2009 until the time of departure from Australia in June 2011 that would amount to physical or psychological abuse of the type required by the Hague defences. Given the stated purpose for keeping the diary it is inconceivable that the Respondent would have omitted to record any event of family violence.

[85] The diary notes also establish that the Respondent was fully capable of stating her position to the Applicant. Indeed in many situations she was the one who was taking a stand on whether the father should resume his relationship with the children, or not, and on what terms. The diary notes provide strong evidence against the sworn statements of abuse that the Respondent has deposed. It must be remembered that while her affidavit describes a catalogue of alleged abuse, not one event is actually noted in the diary which was created for the very purpose of recording concerns.

[86] In addition, the diary notes also show the actions and intentions of the Respondent at the time when she entered into the initial agreement in October 2009 that the father could have three days and two nights per week unsupervised care of the children. That agreement was reached a mere month after separation. That agreement alone is strong evidence that the Respondent did not hold any fears, whatsoever, that the father was in fact a risk to the physical or psychological safety of her children. If she did hold such fears then not only did the diary notes fail to

record it but there would be reasonable concerns about the parental wisdom of agreeing to unsupervised contact.

[87] That agreement was then endorsed when, on 6 July 2010 she entered the mediation agreement. She has raised a criticism of the Australian Legal Aid Service and has said she felt the mediation service failed to adequately appreciate her concerns regarding safety. I reject her criticisms of the service she received. First, it must be recognised that she had legal representation in that mediation. More significantly, her diary notes do not at any stage record any safety concerns when entering the agreement at mediation. Secondly, the mediation merely served to confirm the agreement that she had already entered directly with the Applicant following the end of the marriage. The only recorded concern was that the mediation outcome paid no “consideration for my job and the boys[sic] routine”, nothing regarding safety.

[88] Accordingly, having considered these matters there are significant contradictions between the Respondent’s sworn statements and the contemporaneous notes made by her at the time of the events. The diary notes provide heavy and cogent evidence that from the period of separation until she left Australia the father was a not a threat of any kind to her or the boys.

[89] As well as the diary notes, one must have regard to the actions of the Respondent mother throughout the period. Throughout the period from separation until departure from Australia, the mother permitted the father to have unsupervised care of the children on a weekly basis for almost all of that period. There was a period in January to March 2010 when the father had been unwell, but that contact resumed after the mediation agreement. Once it resumed after mediation it continued until the father was made redundant and he had to move away from the area. Those actions strongly support that she did not hold the fears to the safety of herself or the children that she now claims.

[90] A further and significant indicator of the mother’s real, rather than stated, views is found in a statement in her affidavit of 29 March 2012. In the final paragraph of that affidavit she summarised the number of reasons why she could not

return to live in Australia. She said that if the Court ordered the children to return then she would have no option but to go with them although she would not know how to survive financially or how she would get there. Significantly, she ends the affidavit by stating:

“I would have no objection to [the Applicant] moving back to New Zealand”

That statement by her, which was made on oath and with legal advice, weighs heavily against her contention that there is a grave risk that the children’s return to Australia would expose them to requisite level and type of harm. It is quite remarkable that a person who is claiming that a grave risk will arise for her children by returning to Australia would, at the very same time, state that she is quite comfortable for the person who is the perpetrator of that risk to move to New Zealand.

[91] When confronted with this significant contradiction the Respondent’s Counsel suggested the mother felt immeasurably more comfortable with the protective mechanisms and supports in New Zealand than she would in Australia. Ms Hickman accepted it would be all but impossible for the Court to reach a determination that the Australian Court system could not adequately protect a Respondent against the alleged risks, if in fact they existed. I agree wholeheartedly with the sensible approach of Ms Hickman, especially given that many of our protective domestic violence laws derive from Australia.

[92] Accordingly, there is significant evidence that weighs heavily against any grave risk of physical or psychological harm being occasioned by the children’s return to Australia. The ground under s 106(1)(c)(i) has not been made out.

Intolerable Situation

[93] The mother argues that a return of the twins to Australia would carry a grave risk that would place them in an “intolerable situation”.

[94] As to what amounts to “intolerable” Grieg J stated H v H16;

16 H v H (1995) 13 FRNZ 498, at 504

Intolerable means that something cannot be tolerated. It is not just disruption or trauma, inconvenience, anger. It is something which must be of some lasting serious nature which cannot be tolerated. Human beings, and particularly children, can adjust and re-adjust to various matters, changes in their lives, death and injury, illness, and other matters.”

[95] I accept Mr Davies’ submission that the tenor of the mother’s case revolves around her financial and health status, rather than the situation for children. The section is emphatic in placing the focus upon the children, not the Respondent. Adams v Wigfield17 confirmed that even in a situation where the abducting parent would be placed in an “admittedly distressing situation by the return of the child”, such outcome is irrelevant to this narrow inquiry. The Court stated; “It is the effect upon the child which has to be evaluated”.

[96] The Respondent says that an intolerable situation arises in a number of ways. The first is that she says the Applicant might obtain a Moroccan passport, change the children’s names and remove them from Australia. This concern would be readily ameliorated if she obtained a border alert in Australia once the children returned there. In any event, there is some irony in her contention given it was she who wrongfully removed the boys from Australia, following which she also changed their names without any reference to the father.

[97] Secondly, she argues that because she is HIV positive she is ‘emotionally fragile’ and in need of family support. Those are factors relevant primarily to the Respondent, although have an indirect impact upon the children. However, they are circumstances which existed long before the removal. While her family have returned to New Zealand just prior to the Respondent it is for them to consider whether they can lend support to her in Australia. They assisted in the return of the children to New Zealand and may need to assist their grandchildren pending any resolution of parenting disputes in Australia. With respect to her current state of health she had stated that one of the reasons for her swift departure from Australia was because of the initial detection of breast lumps. It has been confirmed that the lumps have proven to be benign and no current acute health issue exists.

17 Adams v Wigfield [1994] NZFLR 132, at 139

[98] Her main argument under this ground is that if the boys are ordered to return she, returning with them, would be in desperate straits with no home and no employment. Such is true, but one must have regard to the situation that existed when she removed the children. Up until the day of departure she was fully employed as a nurse. She claims her practising certificate has expired but gave no evidence as to whether she can renew it, or what is required to do that. She says she would find it difficult to regain her employment due to her emotional state having intruded into her performance. However, no evidence was produced to verify her assertions. For instance, a letter from her employers would have provided some independent information as to job opportunities. The onus is on her to produce evidence sufficient to establish the ground. Little meaningful evidence, as opposed to assertions, was presented.

[99] She states that she cannot get state support, known as ‘Parenting Payment’, in Australia as she is not a permanent resident in Australia. I do record it is possible for New Zealand citizens embroiled in Hague Convention disputes overseas to seek special needs grants from New Zealand’s Work and Income Department. Again, no reliable or researched evidence was presented to support her statements. The best that was presented was a sparsely detailed computer printout from an unverified source.

[100] She says she is now bankrupt, this being a voluntary action by her on 2 May

2011. Given she deposed that the bankruptcy decision was made prior to her purportedly impulsive decision to leave, it is reasonable to determine that she did not then see bankruptcy as impeding her ability to provide for herself and the children in Australia. Aside from the obvious impediments to obtaining credit, she produced no reliable evidence as to how the bankruptcy might impede her upon return to Australia or whether it will compromise her employment prospects. She made general assertions that it would affect her ability to get rental accommodation. Again, the onus is on her to establish these grounds and there was a lack of evidence provided by her in this respect.

[101] Over-viewing the circumstances at time of removal, prior to her departure she was in full employment, she had housing and was able to reside in Australia despite

being bankrupt. In addition, her diary notes of 7 May 2011 disclose that the Applicant offered to give her more money above child support, an offer she ‘refused’ saying he should go through the Child Support Agency. In short, she was able to cope albeit in difficult circumstances and rejected the offer of immediate money from the father. Significantly, the factors she now relies upon to demonstrate an intolerable situation have arisen solely as a consequence of her election to leave Australia in the manner she did.

[102] The case law is clear that an abducting parent ought not utilise the consequences arising from a wrongful removal as a ground of defence as, to do such would seriously undermine the objects of the Convention. A cautious approach to the circumstances is therefore required. As in Clark v Clarkson18 the situation the children may find themselves in by virtue of return will almost inevitably carry stress, and sometimes that stress will be substantial. However, any stress in the case before me is a consequence of the circumstances of the removal and while the Respondent’s situation may, according to her assertions, now be worse from that which she left, those consequences were foreseeable and ought not to found a reason why the objects of the Convention be subjugated to a position below the Respondent’s own interests. This is especially the case where this Respondent had

clear knowledge that she could not legally remove the children without the father’s consent. She did so against that knowledge and must accept responsibility for any unfortunate consequences that arise from that poor decision.

[103] It requires to be emphasised that the central purpose of the Convention is one of setting jurisdiction, not for resolving substantive matters of child best interests. An over emphasis on the consequences of an abducting parent’s actions carries the risk that the consequences overshadow the Convention’s very purpose. Many of the circumstances the Respondent points to in support of this ground are matters she is fully entitled to raise in any substantive proceeding.

[104] Against the interpretation of “intolerable” in H v H and practical application in Adams v Wigfield, I am not satisfied the Respondent has established this defence to the requisite standard.

18 See above at [75]

[105] The intolerable situation defence has not been made out and is rejected.

Summary

[106] Accordingly, as the jurisdictional requirements in s 105 have been established and the mother has failed to establish to the requisite standard any of the defences in s 106, the Court must order that the children be returned promptly to the Australia; s

105(2).

Decision

[107] I order pursuant to s.105(2) that the children, H and N A born in April 2009 be returned promptly to Australia.

[108] To effect return I also make the following orders and directions;

1. Once the Respondent has made arrangements for air travel to Australia she shall produce a copy of the children’s travel itinerary to the Registrar at least

5 clear days before the departure date,

2. Upon receipt of the flight itinerary the Registrar shall forthwith remit the children’s passports to the New Zealand Airport Police at the International departure point at least two clear days prior to departure,

3. The Registrar is directed to liaise with the Police at such departure point to confirm all arrangements are in place,

4. The Orders Preventing Removal and Surrendering Travel Documents (made

27 February 2012) shall remain in place until advice is received from the Airport Police that the passports are within the custody of the Airport Police. Upon receipt of such confirmation the Registrar is authorised to issue an Order Discharging the Orders made 27 February 2012 and the Police shall retain the children’s passports until the children are within a secure area of the international departure area.

Details if Published

[109] Should this decision be published under s.11B of the Family Courts Act 1980, or be the subject of any appeal, the father will be known as Mr Aboudi, the mother known as Ms Collins and the children as Matta and Yunus. All other identifying features such as locations, employment and such like would need to be anonymised by any person seeking to publish this decision.

Delivered at 9.05am this 1st day of May 2012

P J Callinicos

Family Court Judge

Solicitors:

Willis Toomey Robinson of Napier for the Applicant

Tope Law Limited of Napier for the Respondent