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Jennings v Barton [2013] NZFC 8304 (14 October 2013)

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NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE FAMILY COURT AT TAURANGA

FAM-2013-070-000717 [2013] NZFC 8304

IN THE MATTER OF The Care of Children Act 2004

BETWEEN Jake Jennings

Applicant

AND Monica Barton

Respondent

Hearing: 26 September 2013

Appearances: K Lellman for Applicant

E Eggleston for Respondent

J Douglas Lawyer for Child

Judgment: 14 October 2013

_{RESERVED JUDGMENT OF JUDGE A C WILLS}

JENNINGS V BARTON DC FAM-2013-070-000717 []

[1] The applicant applied on 10 June 2013 for the return of his son Timothy Jennings born

16 November 2004 (“Tim”) to Australia pursuant to s 105 Care of Children Act 2004 (“COCA”). Applications for a warrant and other interim orders were made together with a without notice application for standard directions.

[2] On 12 June 2013 orders were made as follows:

(a) An order preventing Tim’s removal from New Zealand.

(b) An order requiring the surrender of Tim’s passport and any travel documents;

and

(c) A residence order that Tim reside at specified addresses.

[3] The time for filing a defence was reduced to 72 hours with service being effected on

12 June 2013. The respondent filed a notice of defence on 20 June 2013 and subsequently directions were made to timetable the matter to hearing. One of the grounds of objection was that Tim objected to returning to Australia and accordingly a lawyer for child was appointed and a s 133 report directed.

[4] The fixture was originally set down for 9 September 2013. The respondent requested an adjournment of the hearing on 5 September 2013. That was initially refused. On 6

September 2013 an interlocutory application for a stay and an application for leave to appeal were filed. Those applications were declined on the basis that the decision to adjourn the proceedings was not an appealable one. It was clear by that time however, that there was time available within the next three weeks sufficient to meet the needs of the respondent to provide further evidence and to meet the obligation to dispose of Hague proceedings as expeditiously as possible. Accordingly, at a chambers hearing on 9 September 2013 further directions were made as to the filing of additional evidence and the hearing itself was adjourned until 26 September 2013.

[5] At the hearing the applicant continued to seek the return of Tim to Australia. Counsel agreed that the grounds required by s 105 COCA were satisfied on the basis that:

(a) Tim is present in New Zealand.

(b) That Tim was removed from Australia in breach of his father’s rights of custody in respect of him.

(c) At the time of removal the applicant’s rights of custody were actually being exercised or would have been but for the removal; and

(d) That Tim was habitually resident in Australia immediately before the removal.

[6] The respondent raises defences pursuant to s 106 COCA as follows:

(a) That there is a grave risk that Tim’s return to Australia would expose him to psychological harm or place him in an intolerable situation.

(b) That the applicant consented to or later acquiesced in the removal.

Background

[7] The parties began living together in Rotorua in 2003. Tim was born on 16 November

2004 and the parties married on 23 July 2005. On 31 January 2008 Mr Jennings moved to

Western Australia with Ms Barton’s brother and great uncle for work.

[8] In April 2008 Ms Jennings and her daughter Georgina and her mother moved to join the applicant and other family members in Australia. It appears that very shortly after that Mr Jennings and Ms Barton separated and Ms Barton returned to New Zealand with Georgina. It appears that she had not obtained Georgina’s father’s consent to removing her from New Zealand on a permanent basis. Tim remained living with his father until December 2010 and had little contact with his mother. At that time Mr Jennings and Tim visited New Zealand and he and Ms Barton decided to attempt a reconciliation. Ms Barton returned with Mr Jennings and Tim to Australia. Georgina stayed in New Zealand with her father. Two months later the parties separated but remained living in the same home until Mr Jennings moved out in November 2011.

[9] At that time a shared care arrangement was agreed to without any Court intervention and the parties, with involvement from Ms Barton’s family, provided care for Tim. Generally Tim spent weekend time with his father. Tim has spent seven of his almost nine years in the care of both his parents together, or his father solely. He has been in the care of his mother solely since his removal in November 2012. For the year before that the shared care arrangement was in place.

[10] In May 2012 Mr Jennings began a relationship with Janice Griffen and began living with her and her 7 year old son P.

[11] On 23 November 2012 Ms Barton booked tickets for herself and Tim to travel to New Zealand using her mother’s airpoints. On that same day Mr Jennings had weekend contact with Tim and he went back to his mother’s care on 24 or 25 November 2012. On 27

November 2012 Ms Barton and Tim left Australia.

[12] Ms Barton says Mr Jennings agreed to their departure and Mr Jennings says he did not. Ms Barton said she contacted Mr Jennings by text from the airport. Mr Jennings says she did not. Ms Barton says that Mr Jennings raised no objection to them remaining in New Zealand and he says he raised an objection immediately.

[13] Mr Jennings completed an application for return and authority for the Central Authority to act on 15 March 2013. He affirmed his affidavit in support on 17 March 2013 and reaffirmed it on 29 April 2013. The proceedings were filed on 10 June 2013 in the Tauranga Family Court.

[14] The original defences raised to the application were that Tim objected to the return to Australia and that Mr Jennings had consent or acquiesced to the removal. As a consequence of the defences raised Mr Douglas, a senior Lawyer for Child was appointed to act for Tim, and a s 133 psychologist’s report was directed. The psychologist who completed the report was Mr Graeme Higgs. He completed a further report after the nature of the defences raised was altered, to obtain Tim’s views in light of that changed situation.

Legal principles

_{T h e legisl ative sch eme}

[15] The legislative scheme for cases involving international child abduction is set out in subpart 4 of COCA. The provisions of COCA implement the 1980 Convention on the Civil Aspects of International Child Abduction (“the Convention”). The Convention’s focus is to achieve international co-operation preventing the wrongful removal of children. Underlying that is the premise that the appropriate place to determine questions of care, contact and residence is the country from which a child was wrongfully removed. On that basis a speedy determination and prompt return, if directed, are essential.

[16] Section 107 COCA specifically requires the Court to give priority to these proceedings in order to ensure that they are dealt with speedily. The focus is not on substantive custody issues but on forum.

[17] In general, considerations of issues relating to a child’s welfare and best interests are not determinative. Section 105 sets out those matters of which a Court must be satisfied before making an order for return. There is no reference to welfare and best interests in that section, however s 105 is subject to s 106 which provides as follows:

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 [105(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) that the application was made more than 1 year after the removal of the child, and the child is now settled in his or her new environment; or

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

(i) was not actually exercising custody rights in respect of the child at the time of the removal, unless that person establishes to the satisfaction of the Court that those custody rights would have been exercised if the child had not been removed; or

(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

(d) that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate, [in addition to taking them into account in accordance with section 6(2)(b), also] to give weight to the child's views; or

(e) that the return of the child is not permitted by the fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.

(2) ......

[18] Where there is a defence raised that a child would be exposed to physical or psychological harm or be placed in an intolerable situation there must be consideration given to matters which affect a child’s welfare and best interest.

_{Cons en t and /or acq u iescen ce}

[19] An order may be made for Tim’s return if the applicant consented to or later acquiesced in the removal of his habitual residence. Consent must precede the removal of the child from the home country while acquiescence is acceptance of the removal by the left- behind parent after removal has occurred.

[20] The burden of proving that the applicant has consented or acquiesced in the removal or retention of a child lies on the abducting parent with the standard of proof required being the balance of probability. In L v Secretary for Justice (2007) 27 FRNZ 645 at [24] Justice Ronald Young noted that:

New Zealand Courts have followed the House of Lords approach in Re H (Minors) (Abduction:Acquiescence) [1997] UKHL 12; [1998] AC 72. The fundamental principle identified in Re H is that whether a parent has acquiesced in the removal or retention of a child will depend upon the state of mind of the parent who is said to have acquiesced. The burden of proving a parent has acquiesced is on the abducting parent on the balance of probabilities. The one exception to the rule expressed by their Lordships was:

There is only one exception. Where the words 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 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.

[21] The Court in L v Secretary for Justice went on to consider at [27] and [28] some further principles as follows:

(a) A parent cannot be said to have acquiesced unless they are aware the other parent’s actions of removal and retention are unlawful and know, at least in general terms, their legal rights.

(b) Seeking the voluntary return of a child when knowing of Hague Convention rights should not be seen as acquiescence.

[22] The English decision of Re K (Abduction:Consent) [1997] 2 F.L.R. 212 has been applied in the New Zealand Courts. The English decision gives the following guidance:

(a) Consent must be proved on the balance of probabilities by the person relying on that defence.

(b) The evidence in support of the consent must be clear and cogent and must be real, positive and unequivocal.

(c) If the Court is left in a state of uncertainty the defence fails.

(d) The Court may be satisfied that consent has been given even though it is not in writing.

(e) There may be cases where consent can be inferred from conduct.

[23] Consent that has been given cannot be withdrawn by the party consenting: Re A (Minors)(Abduction:Acquiescence) [1992] 2 WLR 536.

[24] Brookers Commentary (CC106.21) notes:

If consent is alleged by the respondent but denied by the applicant the Court will look for confirmatory evidence which supports or casts doubt on the assertion that consent has been given. Such evidence may include the conduct of the applicant and the respondent at the time of and immediately after the consent is alleged to have been given.

[25] In considering issues of credibility when there is a conflict in the evidence as to consent or acquiescence, more weight must be attached to the words and actions of the parties and any independent evidence than to their bare assertions in evidence as to the position: Re H (Minors)(Abduction:Acquiescence) [1997] UKHL 12; [1998] AC 72. That approach was endorsed by the Court of Appeal in Basingstoke v Groot (2006) 26 FRNZ 707.

[26] At [39] the Court said:

[39] In our view, deciding on conflicts of evidence is done in the usual way, taking into account such factors as any independent extraneous evidence, consistency of the evidence (both internally and with other evidence) and the inherent probabilities. ... Courts will thus no doubt be inclined to attach more weight to the contemporaneous words and actions of the parents (and any independent evidence) than to their bare assertions in evidence as to the position – see Re H (minors) (abduction:acquiescence) [1997] UKHL 12; [1998] AC 72 at 90 per Lord Browne-Wilkinson.

Consent: the respondent’s case

[27] The respondent says in her evidence that she discussed the possibility of returning with Tim to New Zealand in June/July 2012. In her affidavit of 1 August 2013 she relates the following conversation.

4. Jake and I spoke face-to-face around June/July (at least prior to my birthday –

14 July) about Tim returning with me to New Zealand.

5. I said to Jake with words to the effect: “I want to go back to New Zealand with Tim. This is because that way he can be close to his sister who he is missing very much. I think we can build a better lifestyle in New Zealand even though it will be harder with finances. I want to study and then I intend to come back to Australia in four or five years”.

6. I said in regards to contact: “You can see Tim for two or three times per year or as often as you like”.

7. Jake said in response: “You can go back but not until the end of the year as I want to spend time with my son. We can work out contact when you get there”. I said “Fine”.

[28] Ms Barton says that she spoke with the father again on at least three occasions about her return before leaving Australia and no objection was raised by Mr Jennings. That evidence is set out in paragraphs 10 to 15 of her affidavit of 1 August 2013. That provides as follows:

10. In August Tim and I had a conversation with Jake at [sic] me returning to New Zealand. Jake was dropping Tim off after his weekend contact. We started talking about New Zealand.

11. Tim became very excited as he heard us talking and he said to me and Jake: “I am really looking forward to seeing my sister, my papa and to go back home”. I said: “Me too”.

12. Jake said “Are you sure bud I am going to miss you you’re my boy. “Tim laughed and replied “Ha-ha dad I can still visit you though.” My response was: “Well we not going anywhere just yet so make the most of each other before we leave”.

13. At the end of August 2012 the topic of New Zealand was again raised. This time it was at

Jake’s home when I was picking up Tim.

14. Jake’s partner Janice said to me in the presence of Jake: “Tim does not want to be included in the new house design as he says he will be going back to New Zealand”. I just laughed and said: “Well, I will speak to him anyway about him coming back to visit you from time to time”.

15. November 2012 I picked Tim up from Jake’s place and said to Jake and his partner that we were going home “in a few days”. I said this in front of Jake and his partner. No response was given apart from a smile from Jake.

[29] Ms Barton also relies on the affidavit evidence of her mother Chole Bedlem and her brother-in-law Tom McDonald.

[30] Ms Bedlem’s affidavit records a discussion with Mr Jennings in August 2012. She says:

4. In August 2012 I spoke with Jake when he came to my residence in order to pick up some furniture.

5. He said that Bridgette had spoken to him and had raised the issue of returning to New Zealand with Tim. I asked him “How do you feel about this?” He replied with words to the effect “I am not altogether happy about it but I will let them return at the end of the year”.

6. I remember being surprised at this and replying along the lines “Well you know that he will be back for holidays because we will ensure he always has a plane ticket”. He replied with words to the effect: “Yeah we always work as a family so that Tim will get back to see me”.

[31] Mr McDonald’s affidavit recorded that he had had two casual conversations with Mr Jennings before Ms Barton left for New Zealand and that Mr Jennings had not raised any objection with him about that return.

[32] In her affidavit of 1 August 2013 Ms Barton at paragraphs 17 to 19 said that weekly telephone contact had been occurring between Mr Jennings and Tim since 30 November 2012 and that she had three or four telephone conversations between 30 November 2012 and the time the Court proceedings were served upon her at the beginning of June 2013. At paragraph 19 she says:

19. On none of those telephone conversations did Jake raise any issue with Tim and I remaining in New Zealand. The Court papers came as a complete surprise.

On that basis she says that Mr Jennings both consented to Tim’s removal from

Australia and acquiesced in him remaining in New Zealand.

Consent: the applicant’s case

[33] In his affidavit evidence Mr Barton has denied that there was any agreement by him to Tim’s removal from Australia. He agrees that Ms Barton did ask him about taking Tim to New Zealand to live but says that he said no. He went on to say that the matter was not discussed any further. While there is no specific response to the affidavits of Ms Bedlem and Mr McDonald there is a blanket denial of discussions or agreements about Tim’s travel to New Zealand.

[34] In his affidavit of 11 July 2013 Mr Jennings refers to the arrangements that he had made for contact on the weekend beginning Friday 30 November 2012 and says that when he arrived to collect Tim there was no one there. He received no answer from Ms Barton’s mobile phone and was told by her house mate that she did not know where Ms Barton was.

[35] Mr Jennings says that while he was at the mother’s home, the mother’s uncle JM

arrived and told him that Ms Barton and Tim had moved back to New Zealand on Tuesday 27

November and that he had come to collect their belongings. Mr Jennings says at paragraphs

39 and 40 that he spoke to the mother by telephone and told her to bring Tim back to Australia but she refused and that later she texted saying she would not bring the child back and that he would have to go to New Zealand and fight to bring him back.

[36] In his fourth affidavit of 23 September 2013 Mr Jennings annexes a series of text messages that took place between himself and Ms Barton on the weekend of 23 November

2012 and subsequently on 30 November 2012. The texts are consistent with the information supplied by Mr Jennings. On 25 November there is a group of three texts from Ms Barton making arrangements for Tim’s return from a weekend with his father. At 3.19pm on 30

November 2012 the text from Mr Jennings to Ms Barton asks “what time I ta pick up the lad?” There is a later text from him at 3.55pm on that day simply saying “on way”.

[37] Mr Jennings says that after he spoke with Mr M he received a text message from the cell phone number that belonged to Ms Barton’s father in New Zealand. That message read “we in NZ call if you wont”. That message was received at 4.48pm on 30 November 2012.

[38] Mr Jennings says that he immediately called the number and Ms Barton answered it. He says that he told Ms Barton she had to return with Tim and the conversation ended with her refusing to do so. He says that he then received a text from Ms Barton. That text is exhibited and provides as follows:

Don’t be a cock call your son and talk to him he dont want to come home just once think about what he wonts

5:03pm 30 November 2012

[39] At 5.12pm on that day a further text was received from Ms Barton saying:

You can come over but you have to take me to court to get him so plan a long stay ed

[40] The response from Mr Jennings at 5.35pm was.

Ill call him tomorrow

[41] There is a further text from 5 December 2012 at 12.22pm from Mr Jennings to Ms

Barton which says:

I will get Tim back eventually, so make sure you enjoy the time you have with him

[42] The response from Ms Barton at 1.18pm on 5 December 2012 was.

I am not scared of you ed your son is happy as so let him be and he has no interest in coming back to oz.

[43] Mr Jennings says that while he continued to make contact with his son by telephone and made arrangements to send Christmas gifts to him he did not at any time agree to Ms

Barton retaining Tim in New Zealand. He annexes as part of exhibit D two texts received from Ms Barton’s father on 3 and 4 March which suggest that Mr Jennings was continuing his efforts to have Tim returned. Those texts provide.

7.40am 3 March

Hi Jake ring me wen u can I will help u get ur boy back

7.50am 4 March

Hay dude I wont be able 2 help u get Tim back it will cost me both my girls if I do thay R all I have

Consent/acquiescence – determination

[44] The evidence of consent and acquiescence must be clear and cogent and the responsibility for proving that consent has been given, or that Mr Jennings has acquiesced, rests on Ms Barton. Although consent and acquiescence can be inferred from conduct the whole picture at the time of removal must be considered and actions taken immediately following the removal must carry significant weight.

[45] It is difficult in circumstances where there has been no cross-examination of the parties to make assessments of credibility however it is possible to look at internal and external consistency or inconsistency to determine the credibility issue.

[46] Mr Jennings has consistently denied that he consented to Tim’s removal or that he subsequently acquiesced in his retention in New Zealand. His four affidavits of 29 April, 11

July, 8 August and 23 September 2013 convey the same story although the level of detail provided is different.

[47] In Ms Barton’s first affidavit of 27 Jun 2013 she conveyed information that was significantly different to that provided by her in later affidavits. In that affidavit she says at paragraph 23 that she had spoken to Mr Jennings about returning to New Zealand in August

2012. She says that Mr Jennings agreed but asked that she wait until the end of the year. In paragraph 24 she says that she had had enough of Mr Jennings’s behaviour and that Tim did want to move but that he did not want to tell Mr Jennings of their plans as he was afraid that Mr Jennings would resist. In paragraph 25 she records that she had booked flights for the

27th of November and texted Mr Jennings from the airport to say that she was leaving.

[48] In her subsequent affidavits she says that the first conversation was before 14 July

2012 and confirms that the flight bookings were made on 23 November 2012 for 27

November 2012.

[49] The evidence in support of Ms Barton’s position comes from members of her family.

Ms Bedlem’s evidence refers to one alleged conversation with Mr Jennings in August 2012 and the balance of her affidavit is hearsay information based on what Ms Barton told her. Ms Bedlem does not in her affidavit mention that she was involved in the purchase of the tickets by transferring air points on 23 November 2012 to fund the travel. Ms Bedlem may well have believed at the time of purchase that Mr Jennings was consenting to the travel, but it seems likely that she had that information from her daughter not from Mr Jennings.

[50] The affidavit of Mr McDonald does not provide information that Mr Jennings positively endorsed the removal to New Zealand. The evidence of Ms Barton’s father, Mr P, deposes that the issue of Tim being in New Zealand was not raised. That is inconsistent with the evidence provided by Mr Jennings of the text messaging which included texts from Mr P on 3 and 4 March 2013.

[51] There is further evidence available from the s 133 report. At paragraph 1.8 and 1.9

Tim said to the report writer, Mr Higgs.

I’m pretty angry with myself for coming back because it was the wrong decision – it was wrong because I can’t see dad or Gran or my aunt and uncle.

I missed mum when she was in New Zealand and now I miss dad.

We had to do a runner but mum made the decision – I was sad and nervous because I

did not want dad to be sad.

[52] The psychiatric report from Dr Patel points to the ending of Ms Barton’s relationship with a partner just prior to her travel to New Zealand and the psychiatric and psychological evidence suggests that the stress of the relationship was a problem for her.

[53] Ms Barton has made allegations about how poor her relationship with Mr Jennings was and she describes a fear of both physical and psychological abuse from Mr Jennings if she returns to Australia. She has supplied that information to Ms Lightfoot who has relied on it in preparing her report. That evidence is entirely inconsistent with the content of the text

messages exhibited as exhibit A to Mr Jennings’s affidavit of 23 September 2013. The messages are relaxed, friendly and reflect excellent co-operation between parents. This suggests that Ms Barton’s assertions lack some credibility.

[54] It is inconceivable that if there had been real agreement by Mr Jennings to Tim’s travel to New Zealand, that he would not have said goodbye to Tim and would likely have seen him off at the airport. The text messaging is entirely inconsistent with consent being given.

[55] Ms Barton was clearly aware that to move Tim from Australia she would require Mr Jennings’s consent. Knowing that, the failure to obtain written consent from Mr Jennings in conjunction with the other contemporaneous evidence supports a finding that consent was not given. She relies on oral consent given, she says, in August. The air tickets were not purchased until 23 November 2013 at short notice. Mr Jennings had spent the whole weekend with Tim from 23 to 25 November 2013. There is no suggestion that Mr Jennings was advised on 25 November 2013, when Tim went back to his mother’s care, that Tim was leaving Australia in two days time. That suggests that Tim was not aware of the proposed travel during the weekend he was in his father’s care. The likely conclusion to be drawn is that Ms Barton did not tell Mr Jennings that she was leaving and that tickets had been purchased because she knew he would not consent. The test messages lead to the same conclusion.

[56] The onus rests on Ms Barton to show that consent was given. She has not discharged that onus and I find positively that Mr Jennings did not consent to the removal of Tim from Australia before he was removed on 27 November 2012.

[57] The question of acquiescence can be dealt with in a relatively short order. The text messaging supplied by Mr Jennings makes it plain that the evidence given in Ms Barton’s affidavit and that of Mr P, that Mr Jennings did not seek Tim’s return after discovering he had been removed from Australia, was not correct.

[58] Mr Jennings’s ongoing contact with his son cannot be seen as acquiescence. He is entitled to and indeed should, as a responsible parent, maintain his contact with his son as best he can even in circumstances where a removal has taken place.

[59] There has been an argument raised that the delay in filing the Hague Convention proceedings of itself may amount to acquiescence. I am satisfied that Mr Jennings made attempts to have Tim returned to Australia by voluntary means. He is entitled to attempt to do that without it constituting acquiescence. While his affidavit was not properly sworn until

17 April 2013 he completed his application on 15 March 2013 and swore his affidavit first on

17 March, only a few days after his e-mail correspondence with Ms Barton’s father, Mr P. That delay of 4 ½ months is not an inordinate delay and does not amount to acquiescence in circumstances where Ms Barton must have known earlier that there was no agreement to her retention of Tim in New Zealand.

[60] The onus rests on Ms Barton to show that Mr Jennings consented to the removal or acquiesced in Tim remaining in New Zealand. The evidence of that must be clear and cogent to satisfy the high threshold required. The evidence does not meet that standard and the defence raised fails.

Grave risk/intolerable situation defence – legal principles

[61] The Court may refuse to order the return of a child if it is satisfied that there is a grave risk the child’s return would expose the child to physical or psychological harm; or would otherwise place the child in an intolerable situation. If the defence is established the Court then has a residual discretion to consider return.

[62] The Court of Appeal decision in HJ v Secretary for Justice [2006] NZCA 400; [2006] NZFLR 1005; (2006) 26 FRNZ 168 (CA) is the leading authority in respect of this defence. That decision confirmed the approach taken in A v Central Authority for New Zealand [1996] 2 NZLR 517; [1996] NZFLR 529; (1996) 14 FRNZ 348 (CA).

[63] The words of the section make it clear that a very high standard of proof attaches to the defence, however there must be some exceptional cases in which a refusal to return a child should be contemplated.

[64] The defence relates to the situation of the child and not of the parent as the return contemplated is a return of the child to the country of habitual residence and not necessarily to the custody of the person applying for the return. The grave risk must be associated with

the return of the child to the home country. It is therefore necessary to consider first whether there is a grave risk that a child’s return to the home country would expose him to psychological harm or otherwise place him in an intolerable situation and then, if that is so, it is then necessary to consider whether the home country has the ability to protect the child from that grave risk or intolerable situation.

[65] The decision of Armstrong v Evans (2000) 19 FRNZ 609 (DC) at [38] provides a summary of general principles:

[38] The following general principles appear to be relevant to the determination I

must make:

1. The focus is on the child’s situation, not that of the respondent. The issue is not whether the mother would be exposed to physical or psychological harm but whether the child would be exposed to physical or psychological harm or otherwise be placed in an intolerable situation.

2. The return that causes the grave risk is the return to Australia not to the applicant. The respondent must therefore satisfy the Court that it is not the return to the care of the applicant which will expose the child to risk, but the return to the country itself which will threaten the child’s safety or place him in an intolerable situation.

3. It is not sufficient to show merely that allowing custody or access to the applicant would involve grave risk of exposure to physical or psychological harm to the child or place the child in an intolerable situation. The respondent must go further and show why the legal system of the country of habitual residence cannot be trusted to safeguard the interests of the child pending the outcome of custody and access issues there.

4. The risk of physical or psychological harm must be substantial or severe.

5. The harm done must be more than the damage that is a natural consequence of the disruption to the child’s life of the removal and the return.

6. The risk posed must be substantial. Damiano v Damiano [1993] NZFLR 584: “The test is not whether there appears to be unacceptable risk of

physical or psychological harm. The risk is promoted to a much

higher threshold. “Grave” and “exposed” import the most serious of situations.”

7. The respondent cannot create a situation of potential psychological harm and then rely on it to prevent the return of the child (C v C (above)).

8. The onus on a party seeking to rely on a s 13(1)(c) defence is to show that the country of habitual residence does not provide mechanisms by which the best interests of the child can be protected.

9. The standard of onus of proof is very high.

10. There is a presumption in favour of the child’s return.

[66] The Court of Appeal both in HJ v Secretary of Justice and in Smith v Adam [2006] NZCA 494; [2007] NZFLR 447 (CA) reiterated the position that in the normal course of events the legal systems of other countries will protect children from harm. In Smith v Adam the Court of Appeal added at [7]:

We see this as extending to an expectation that the health and welfare systems of other countries will also usually be designed to keep people well and to protect children from harm.

[67] The New Zealand Courts have previously and appropriately expressed confidence in the Australian Family Courts to make decisions that are in the best interests of children as required by Australian law. In Secretary for Justice v M [2009] NZFLR 1033; (2009) 28

FRNZ 654 at [51]:

The Courts have made it very clear that the Hague Convention is concerned with the forum where welfare and best interests are to be determined. If the system of law in the country from which the child is abducted has its primary focus on the best interests of the child, then it is that country which is the appropriate forum.

[68] At [53] the Court in Secretary for Justice v M referred to the comments of His Honour

Judge Inglis QC in Connor v Toms FC Palmerston North FP 054/526 196, 20 December

1996:

With some familiarity with the workings of the Family Court of Australia, New Zealand Family Court Judges will be able to say with complete confidence that the protection can be provided by the Family Court of Australia would entirely ameliorate the risk of physical or psychological harm or an intolerable situation for the child in a case of this kind.

[69] The case law has recognised that disruption and harm are likely to be caused by removal and return of a child. The decision of Clarke v Carson [1996] 1 NZLR 349; [1995] NZFLR 926; (1995) 13 FRNZ 662 (HC) has been referred to in many decisions, identifying that the situation in which children find themselves where they have been wrongfully removed or retained will inevitably cause stress to them. In that case the Court said:

... 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.

[70] In the decision of Armstrong v Evans the Family Court considered whether the psychological deterioration of a parent could in turn create a grave risk for a child. In that case the Court found that there was an intrinsic or internalised risk to the child in terms of their emotional or psychological well-being that could not be protected by the Courts of the home country.

[71] In that case the Family Court declined an application for return of a one year old child on the basis that the defence of grave risk was made out. The Court accepted, on the evidence provided, that the respondent mother had been subjected to violence by the applicant in Australia and that her development of post-traumatic stress disorder and major depressive disorder was directly associated with the country where that violence began. The Court found that the prospect of the mother’s suicidality was associated with re- traumatisation for the mother if she were to return to the place where the trauma occurred. At [56] Her Honour Judge Doogue said:

Since the child is and has been for a significant part of his life...wholly dependent on the respondent, the implications for him of impaired psychological functioning or even of suicide of the respondent are palpable and compelling. I am satisfied they pose a risk of not just grave but grievous long-term psychological harm. The risk is thus substantial as defined in Damiano (supra). The risks are the child may suffer the grief of separation from a severely depressed primary caregiver, the permanent loss of a parent, the complications of a relationship with the one remaining parent who may be seen by him to be in part or in whole causative of the suicide, the problems of resolving why the respondent took the action she did if she genuinely cared for him and all the resultant life difficulties that a parent’s suicide leaves for a child or young person. This potential harm is at such a level that it is clearly more than the damage occasioned by the disruption of removal and return.

Grave risk/intolerable situation - the respondent’s case

[72] Ms Barton says that Tim would be exposed to a grave risk or intolerable situation either if he returned to Australia with her or without her. That submission is based upon the threat to Tim’s psychological and emotional state from the compromise of Ms Barton’s psychological functioning and the risk of her committing suicide. In making that submission Ms Barton relies on her own evidence including the various reports exhibited to her affidavit of 20 September 2013 including:

(a) A report from Dr Patel, psychiatrist dated 8 March 2013.

(b) Her medical reports from her general practitioner for the period 30 June 2013 to 17 May 2013.

(c) Letters from various people at Te Puna Hauora, a community agency which has been providing a wrap around service for Ms Barton.

[73] A psychological report dated 17 September 2013 is annexed to Ms Lightfoot’s affidavit of 19 September 2013. Ms Lightfoot met with Ms Barton and reviewed Dr Patel’s report and that of Theresa Hewlett, a psychologist who had seen Ms Barton in Australia over a six month period. Ms Hewlett has also provided an affidavit of 18 September 2013 annexing a report of the same date. Ms Hewlett based her report on clinical observation and self-report of Ms Barton during eight 70 minute psychotherapeutic sessions between the periods 11 June 2012 to 11 October 2012. In preparing her report Ms Hewlett had access to Dr Patel’s psychiatric report together with the GP referral to Dr Patel and Ms Lightfoot’s psychological report.

[74] Ms Barton’s affidavit of 20 September 2013 describes in paragraphs 14 to 18 the depressed and suicidal state that she was in while in Australia and upon her return to New Zealand. She says that she had attended a number of doctors in Perth, received medication and had seen a psychologist, Ms Hewlett. She says “All this did not help. I became so depressed that I felt I was going insane. I became suicidal. I could not see the light anymore. My world was incredibly dark. My children became distant memories and happy times no longer existed.”

[75] Ms Barton says that since January 2013 she has engaged with Te Puna Hauora (TPH) and in particular with a support person Mary Hira who she says she meets with on a weekly basis. She has also been provided with budgeting, financial and housing assistance from Bari Tamihana and Cynthia Clay also from TPH.

[76] It is her evidence that the same standard of care was not provided to her while she was in Perth and would not be available to her in Perth now. That is confirmed by the evidence of Ms Hewlett who has provided information about community based support services that would be available to Ms Barton if she returned to Australia. In appendix A to her report she identifies the services that seemed appropriate for Ms Hewlett but noted that this was not an

extensive list of the community services available in Perth. She commented that the services available in Perth do not appear as holistic or comprehensive as that offered by TPH.

[77] It is Ms Barton’s position that there is a very real risk of her committing suicide if she were to return to Australia and that this would pose a grave risk to Tim and place him in an intolerable situation as he could suffer the loss of his primary carer with whom he has a close attachment and with whom he wishes to live. There would be concern, she says, that Tim might consider his father as having caused that suicide or struggle to understand why his mother had taken the action she did if she loved him.

[78] This is not a situation where she seeks to blackmail the Court because she has a mental illness of long duration including suicide attempts and is receiving helpful and ongoing treatment and support in New Zealand with TPH which she wishes to continue and believes is necessary for her mental wellbeing and therefore for Tim’s wellbeing as well.

[79] Mr Eggleston for Ms Barton submits that Tim cannot return to Australia without his mother because there are no other primary care options available there. In particular Ms Barton’s family members who live in Australia have said they are unable or unwilling to care for Tim if he returns to Australia without his mother. Counsel points out that Mr Jennings has not made an unequivocal statement which sets out his willingness to care for Tim on a full- time basis in the absence of Ms Barton. On that basis, Mr Eggleston says that the only alternative for Tim in Australia would be State care which should not be countenanced by the Court.

[80] Ms Barton relies on the first report from Mr Higgs which sets out Tim’s views. In the first report Tim’s strong and uninfluenced wish was to continue to live with his mother in New Zealand and he did not want to live with his father because A (aged 7) had attempted to strangle him. He reported that he missed his father and other family members and wanted to see them. Counsel says that Tim has expressed his objection to a return in a rational way which suggests that he has not been influenced by his mother.

[81] The parentification of Tim was identified by counsel for Ms Barton as adding to the concerns for him on the basis that if he were in Australia without his mother he would worry about her and the ongoing anxiety could cause later issues for him. If she were to return to

Australia it is said the likely decompensation might result in Ms Barton’s mental state deteriorating and lead her to find maladaptive coping strategies such as drug or alcohol use.

[82] Ms Lightfoot pointed out that for people who have personality disorders like Ms Barton there is real difficulty in maintaining relationships and that it is hard for them to maintain a trusting therapeutic relationship. On that basis she points to the need to retain the relationship between Ms Barton and her support worker Ms Hira and others at TPH. There is no guarantee she says that a similar relationship could be established with a therapist in Perth and there would likely be a period of a few months of decompensation. In para 6.8 of Ms Lightfoot’s report she identifies the “very real risks” for Ms Barton of relocating to Australia as:

(a) Ms Barton will lose the gains she has made in developing relationships, managing mood and anger, regulating behaviour, and stabilising her living situation.

(b) Ms Barton will again turn to maladaptive coping strategies such as problematic substance use, social withdrawal and self-isolation (including withdrawal from therapy and support services) and chaotic lifestyle/transience in an effort to manage her situation.

(c) Ms Barton will again become suicidal.

[83] Mr Eggleston submits that these factors and particularly the risk of suicide combine to create a situation of grave risk to Tim psychologically and place him in an intolerable position if he were required to return to Australia with or without his mother. This case, Mr Eggleston says, is on all fours with the decision in Armstrong v Evans where the application to return the child was refused.

Grave risk/intolerable situation – applicant’s case

[84] For Mr Jennings Ms Lellman points out that the focus must be on the child’s situation not that of the abducting parent nor on the Ms Barton’s care options either here or in Australia. She says that Ms Barton’s ability or inability to effectively parent either in New Zealand or Australia is only relevant if it results in a grave risk to Tim.

[85] Ms Lellman noted that Mr Higgs second report identifies Tim’s attitude towards his father becoming more negative and that he had received information either directly from his

mother or by listening to adult conversation. Mr Higgs suggested that any negative impact arising from Ms Barton’s psychological condition could be diluted by contact with his father and extended family. He also noted that Tim was able to contemplate a return to Australia without his mother and how he would manage that.

[86] Ms Lellman submits that there is no grave risk identified for Tim in a return to Australia. She says that the allegations of physical and psychological abuse made against Mr Jennings are not supported by any evidence other than Ms Barton’s bare assertions. Further, that they are contradicted by the text messaging evidence, the parties’ ability to arrange shared care after separation without Court intervention and the fact that Ms Barton left Tim in his father’s sole care for almost 2 ½ years. She points out that there is no independent evidence that there has been domestic violence and no application has ever been made for a protection order or its equivalent in Australia.

[87] The assertion that A poses a physical risk of harm to Tim if he returns to Australia does not, she says, meet the test of grave risk. The psychologist’s report notes Tim’s comments that A’s behaviour was addressed at his father’s home by A being put in his room.

[88] Ms Lellman points out that Ms Barton failed to disclose in her affidavits her drink driving conviction in Australia, her threatening to kill charge that was pending in Australia, her engagement with mental health services in Australia, her relationship with a methamphetamine dealer there and her use of illegal drugs, both cannabis and methamphetamine. She says that this places Ms Barton’s general credibility in doubt particularly when considering the reasons why Ms Barton may not wish to return to Australia.

[89] Ms Lellman submits that the decision in Armstrong v Evans can be distinguished. Unlike that case, she says Ms Barton has significant family support in Australia, has access to medical and psychological services in Australia and there is a father available to Tim in whose care he has previously been left.

[90] The stability and security of Tim in his mother’s care has been called into question by difficulties in his schooling and Ms Barton’s recent removal of him from his school. His absences from school and the instability in his life are not features which make a return to Australia problematic for him, rather the reverse.

Grave risk/intolerable situation – discussion

[91] The facts in Armstrong v Evans are distinguishable from those in this case. While there is a clear suicide risk for Ms Barton that risk is not related to a return to Australia but is a condition that has been a part of Ms Barton’s life since she was thirteen years old. In the Armstrong case it was the return to Australia itself that was found to be the precipitating factor as the respondent’s Post-Traumatic Stress Disorder and depression arose while she was in Australia and was caused by proven domestic violence against her by the applicant. The Judge found that the prospect of suicidality was associated with re-traumatisation through a return to the place where the trauma occurred.

[92] There is no evidence of that in this case. In particular the mental illness suffered by Ms Barton does not arise out of Mr Jennings’s violence and in any event I do not accept Ms Barton’s evidence, unsupported by any other material, that Mr Jennings has been violent, contradicted as it is by the evidence that the parties cooperated well together about the care of Tim while in Australia.

[93] In addition the very young child in that case was wholly dependent on the respondent who had been the primary carer since birth and the father applicant was not able to care for the child if returned to Australia. That is not the position here.

[94] I do not accept the submission of Mr Eggleston that Mr Jennings is not prepared to care for his son. He has made it clear that his view is that the best option for Tim’s care in Australia is for his parents to share care and he is prepared to continue that if Tim is returned. He has also been clear that he will come to New Zealand to pick up Tim if needed. While he has not said that he wants Tim in his sole care there is no evidence that he is unwilling or unable to care for Tim.

[95] Ms Barton suffers from a personality disorder and her therapy is likely to be lengthy and intensive. Ms Lightfoot identified in cross-examination that Ms Barton would be likely to be subject to up and down behaviour for some time. In answer to a question from Mr Douglas about an incident that took place at the school when Ms Barton lost her temper and swore and yelled in front of the children and staff and removed Tim from the school she said:

..... if I were Ms Barton’s therapist, I would challenge her to work with the school on changing the situation, rather than just up and moving away and avoiding the situation again.

...

And later she said:

... Ms Barton has a long-term pattern of moving away, or just up and going somewhere else to deal with things. I think it’s, you know, timely for her to address her behaviour which is unacceptable – to model to Tim that things, you know, relationship difficulties can be addressed.

[96] While I acknowledge that TPH is providing excellent support to Ms Barton and that there is a relationship of trust with her key worker Ms Hira, it is also clear that Ms Barton had an established relationship with Ms Hewlett her psychologist in Australia and attended with her for six months. While she has subsequently expressed her view that the counselling in Australia was ineffective she had told Dr Patel in March 2013 that it had been helpful to her. This contradiction makes it difficult to accept Ms Barton’s evidence that has been provided in affidavits filed after proceedings were served.

[97] Services are available in Perth to assist Ms Barton. She has been able to access them before. If she cannot face a return to Australia then I am satisfied that Tim’s needs can be met by his father and extended family who have worked together to support Tim in the past in the absence of his mother. It may be that Ms Barton feels a need to remain in the short term in New Zealand and to move forward with her counselling – that is a matter for her. This is an issue about Tim’s return to Australia - to enable questions about his care to be resolved by the Australian Courts if Tim’s parents cannot do so themselves. The appropriate forum for these decisions is the Australian Family Court.

[98] It is likely that if Tim were to return to Australia without his mother that he would be anxious about her. That is a consequence of the parentification about which both experts were concerned. That is not healthy for Tim and he is likely to require some therapy and counselling himself. I accept Mr Douglas’ submission that Ms Barton has created this situation by removing Tim unilaterally from a stable situation in Australia where he had extended family involvement and a shared care arrangement which enabled him to have time with both his parents.

[99] While Tim’s objection to returning to Australia is based on his desire to live with his mother, he can envisage life in Australia if his mother remained in New Zealand. There are services available to assist Ms Barton both in New Zealand and Australia.

[100] The risk of psychological harm to Tim is not sufficiently substantial and severe to meet the test for grave risk. In addition the Australian legal and welfare systems can be relied upon to meet the needs of Tim and his mother. The onus of proof rests on Ms Barton to show that Tim would be placed in an intolerable situation or that there would be grave risk to his psychological well-being by being returned to Australia. That burden has not been met.

Conclusion

(a) Counsel are agreed that the s 105 grounds are made out and that therefore there must be an order for Tim’s return to Australia unless a s 106 defence is established on the balance of probabilities.

(b) There is insufficient, clear and cogent evidence to establish on a balance of probabilities that Mr Jennings consented to Tim’s removal from Australia. The actions of the parties at the time of the removal carry more weight than the later assertions made in affidavit evidence. The defence of consent fails.

(c) There is no clear and cogent evidence that Mr Jennings acquiesced in Tim’s removal. The evidence of Ms Barton as to acquiescence is squarely contradicted by the text messaging that took place following removal. The delay in filing is not of itself acquiescence and Mr Jennings was entitled to attempt to effect the voluntary return of Tim to Australia before filing proceedings. The defence of acquiescence fails.

(d) The defence raised that Tim will be placed in a situation of grave risk to his psychological well-being or in an intolerable situation is based upon his response to his mother’s psychological and psychiatric well-being in the event that she returns to Australia. It is proffered on the premise that there is no alternative caregiver for Tim in Australia and particularly that his father has

not unequivocally said that he will care for Tim if Ms Barton does not return to

Australia with him. I find:

(i) The evidence infers that Mr Jennings will uplift Tim if Ms Barton does not return to Australia with him and will care for him, he having done so in the past.

(ii) The risk of Ms Barton’s suicidality has been present through the whole of Tim’s life.

(iii) There is no evidence supporting Ms Barton’s assertions as to the physical and psychological violence she says was used by Mr Jennings against her and that evidence is contradicted by the text messaging showing a comfortable relationship.

(iv) Ms Barton is benefiting from the counselling and therapy available to her in New Zealand and a similar wrap around service is not available in Perth, however there are significant services available to Ms Barton if she were to return to Australia and she has effectively accessed those services in the past.

(v) The evidence does not establish a grave risk/intolerable situation defence on the balance of probabilities and the defence must fail.

Order

[101] There is an order that the child, Timothy Jennings born 16 November 2004 be returned to Western Australia forthwith.

A C Wills

Family Court Judge