H v R [2017] NZHC 2617 (25 October 2017)

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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

UNDER	the Care of Children Act 2004 and the ratification thereby of the Hague Convention on the Civil Aspects of International Child Abduction 1980
IN THE MATTER OF	an Appeal against the decision of His Honour Judge DA Burns in the Family Court at Auckland dated 5 July 2017
BETWEEN	H Appellant
AND	R Respondent

Hearing:	17 October 2017
Counsel: Appearance:	IM Blackford for appellant AE Ashmore, counsel assisting the Court Respondent in person
_Judgment:	_{25 October 2017}

pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar ..................................... .......... Date..............................

[1] This is an appeal from a Family Court decision in which Judge D A Burns declined to order the return of a seven-year-old child to Australia.¹The appellant (the child’s father) says the respondent (the child’s maternal great grandmother) wrongfully relocated the child to New Zealand in July 2016. The appellant says he did not know about or consent to the child’s removal, and now seeks the child’s return pursuant to s 105 of the Care of Children Act 2004 (“Act”).²

[2] The respondent represented herself on appeal. She says the appellant consented to the child’s relocation, and that these proceedings are really driven by the appellant’s father, who has exerted pressure on the appellant to seek the child’s return.

[3] Counsel assisting the Court, Mr Ashmore, was appointed to ensure the Court was appraised of the competing positions in a fair and balanced way.

[4] The child’s mother was born in New Zealand in 1991. The father was born in Australia in 1993. The mother moved to Australia around 2002 or 2003, where she spent time in the care of the respondent and her husband (who had been residing in Queensland since 2003).

[5] The parents began their relationship in early 2009. They lived with the respondent for a short time, before moving into a flat together. The child was born in August 2010. Shortly before the child’s birth, the mother travelled to New Zealand.³

_{The mother and child spent around six months in New Zealand before
returning to}

concern the proper forum for the resolution of issues relating to the care of and contact with children. They do not concern or determine the substance of those issues: Andrews v Secretary for Justice [2007] NZCA 223, [2007] NZFLR 891 at [20].

Australia in early 2011. The respondent continued to live in Australia at this time. The appellant says he and the child’s mother had agreed prior to the birth that they would have more support in Australia and the child would have more opportunities there, noting that “both the great grandmother and the paternal grandfather were living in Queensland at the time”.

[6] There is a conflict in the evidence about the maternal grandmother taking the child to New Zealand in December 2011. The appellant says this happened without the parents’ consent and that he made a Hague Convention application at the time (with the support of his father). He says he cannot recall if orders were made, but in March

2012, the mother collected the child and brought him back to Australia. No papers relating to such an application are in evidence.⁴For her part, the grandmother strenuously denies this version of events.⁵

[7] The parents separated in late 2011 and at some point in 2012, the appellant was imprisoned for drug-related robbery offending. He remained in prison until his release in 2015. The appellant also has some mental health issues (including schizophrenia), although he says that since his release from prison his mental health is improving and he is no longer addicted to drugs.

[8] Since 2013, the respondent has been the child’s primary caregiver. This is largely because the mother had developed a serious drug habit (methamphetamine) and was unable to care for the child, and the father was in prison. The mother has herself been in prison since January 2016 for drug-related offences. She has taken no part in these proceedings.

[9] The appellant says he has had reasonably regular contact with his son since his release from prison, primarily by way of fortnightly contact. He says that as of May

⁴The Judge noted at [18](c) of the Judgment that despite the appellant’s allegation that a prior Hague Convention application had been filed, “nothing has been filed with the Family Court of New Zealand”.

⁵The grandmother says the child’s return had nothing to do with the appellant or his father. She says that in December 2011, she received an emergency “mayday” call from her mother (i.e. the respondent), who was very concerned about the child’s welfare (the child then living with his mother and the mother’s new partner). The grandmother says she brought the child to New Zealand with his mother’s consent, but not long after doing so, the mother demanded the child’s return to Australia.

2016, the respondent began “blocking” his contact with the child. The respondent agrees that after his release from prison, the appellant saw the child for a couple of hours every fortnight, usually at a local park or playground, supervised by herself. However, she says that towards the end of 2015, and certainly by the beginning of

[10] The child’s paternal grandfather (the appellant’s father) has also had some contact with the child, although the extent and degree of this is disputed. The paternal grandfather says he has had regular and at times unsupervised contact with the child. But this is strenuously denied by the respondent, who says she has never permitted or been willing to let the child have unsupervised visits with the paternal grandfather.

[11] On 11 May 2016, the paternal grandfather (but not the appellant) applied to the Federal Circuit Court of Australia for orders in respect of the child, including access between the paternal grandfather, the appellant and the child at the paternal grandfather’s home, and an order that the child reside Australia (“Australian proceedings”). He also sought orders that the child’s surname be changed to his and the appellant’s surname. The respondent was served with a copy of the Australian proceedings on 27 May 2016.

[12] On 2 July 2016, the respondent returned to New Zealand with the child. The respondent says this was always intended to be a permanent relocation to New Zealand. She says that it was becoming increasingly difficult to remain in Australia living away from the family support network, which includes the respondent’s three children (and their families) who live in Auckland. The respondent says that the decision was taken to move to New Zealand at the end of June 2016, as the child’s passport was about to expire (and the child’s mother not having taken steps to have it renewed).⁶

[13] As noted, the respondent says the relocation occurred with the full consent of the appellant. As also noted, the appellant denies this.

⁶A copy of the passport is in evidence, confirming it expired on 22 July 2016.

[14] Shortly after arriving in New Zealand, the respondent applied to the New Zealand Family Court for day-to-day care and guardianship orders in relation to the child (“New Zealand proceedings”). She later arranged for the New Zealand proceedings to be served on the child’s parents, with the appellant saying he was served on 3 September 2016.

[15] In the meantime, the paternal grandfather’s Australian proceedings were called in the Australian Federal Court. On 26 August 2016, the respondent apparently appeared at that call, and indicated she did not intend to return to Australia with the child. It appears those proceedings have since been adjourned.

[16] On 23 February 2017 (approximately eight months after the child was taken to New Zealand), the appellant commenced the present Hague Convention proceedings in the Family Court in Auckland. The application was heard on 31 May 2017 and the Judgment delivered on 5 July 2017.

[17] The jurisdictional grounds for an order for return have not been disputed in these proceedings. Rather, the key issue before the Family Court Judge was the defence of consent.⁷

[18] In considering this issue, the Judge began by setting out a detailed chronology of events. He said he constructed this from various files relating to the child that were before him.⁸I do not propose to set out that chronology in this judgment. I also note that in considering the issues raised on appeal, I have confined myself to the affidavit

⁷I note that it was not argued in the Family Court or before me that the appellant had acquiesced in the retention of the child in New Zealand.

⁸It appears that in doing so, the Judge drew on material and evidence from files other than the present (Hague Convention) proceedings. He acknowledged this evidence has never been tested,

but stated that “I have looked for what is common ground between the parties in their respective

affidavits and as recorded by various Judicial Officers and lawyer for the child”.

⁹The respondent also sought to advance further documents and evidence on appeal. In a ruling delivered by me at the outset of the appeal hearing, I declined to take that evidence into account, finding that, for the purposes of r 20.16 of the High Court Rules 2016, there were no “special reasons” why that evidence ought to be admitted.

[19] The Judge then set out the parties’ competing cases before making the following factual findings, which he described as the “key facts”:

(a) That neither the mother nor the fathers are candidates to have care of the child.¹⁰

(b) The paternal grandfather has never had care of the child but has seen the child from time to time. (The extent of the paternal grandfather’s involvement with the child is in dispute.)

(c) Care has been undertaken by the respondent for three years prior to the shift to New Zealand. (This is not in dispute.)

(e) There is considerable doubt that the father has the capacity to bring proceedings, with long-established methamphetamine addiction, mental health issues and prior incarceration. The Judge also noted the evidence is not clear as to the status of the appellant as a guardian in New Zealand.

(f) The reality is that the driver of the Hague Convention application is the paternal grandfather.

¹⁰I note that, at least in relation to the appellant, this is not in dispute. The appellant says if an order is made to return the child to Australia, and the respondent does not return with him, the child would be cared for by both the appellant and his father, pending longer-term care and custody arrangements being made.

¹¹The respondent’s own evidence is that she did not have the mother’s consent prior to bringing the child to New Zealand in July 2016. Ms Blackford says this is a factual error by the Judge, and is of real concern. But I read the Judge’s finding, at least at this point of the Judgment, to be a

reference to a statutory declaration by the child’s mother (taken at the Brisbane Women’s

Correctional Facility on 14 December 2016) that “Im [sic] in agreement with my son ... being in the care of my grandmother ... until I am able to have him back in my care in the near future .” The Judge says consent was given when the mother “must have known that she was likely to be deported”, and that while it does not provide consent to relocation, that “is implicit in her acknowledgment that [the respondent] is to provide care”.

(h) It is likely the mother will be deported back to New Zealand upon being released from prison.¹²

(k) The appellant was seeing the child prior to the shift “spasmodically.” The Judge nevertheless accepts that the appellant was exercising rights of custody and therefore has standing to bring the Hague Convention application.

(l) The child has “shifted back and forth” across the Tasman a number of times (this characterisation that the child has “shifted” back and forth is in dispute).¹³

(m) There have been six prior “agreements” between the parties to the child “shifting back and forth,” though none were formalised. (Again the characterisation of there being multiple “shifts” back and forth, rather than visits to New Zealand, is in dispute.)

[20] The Judge then examined the parties’ competing cases on consent. Having done so, he made a positive finding that “the father did in fact give consent to the maternal great grandmother shifting the child back to New Zealand”.¹⁴While accepting there was no corroboration of the appellant’s consent, the Judge noted he had to put the consent “into the context of this particular case on these particular facts”. In doing so, he took into account a number of “critical matters”, being:

¹²I note there is no direct evidence in relation to this, thought the respondent has deposed that this is the mother’s parole officer’s view.

¹³It is not in dispute that the child was in New Zealand for several months immediately after his birth; that he was in New Zealand for a number of months in late 2011 and early 2012; and that the respondent had brought the child back to New Zealand for a two-week holiday in July of each of the last few years prior to the relocation.

(b) The “previous behaviour of the parties shifting back and forth across the Tasman with only prior verbal agreement”.

(d) The significant delay in filing the application (from which the Judge drew an inference that the proceedings were not initiated by the appellant but the paternal grandfather).

(e) The respondent’s evidence as to consent had been given well prior to the Hague Convention proceedings having been commenced.

(f) The respondent’s evidence of consent was consistent with contemporaneous text messages from the appellant showing, in particular, no objection by him to the shift.

(g) The limited exercise of the father’s rights of custody prior to the shift.

(h) The respondent’s evidence that there was clear and unequivocal consent given by the mother to the shift back to New Zealand (which the Judge accepted).¹⁵

(i) That but for the paternal grandfather’s involvement, the Judge’s view that the appellant would not have taken steps under the Hague Convention.

(k) The difficulties of the respondent obtaining a benefit after she stopped working because of the policy changes said to be made by the

¹⁵Though noting it was not the respondent’s evidence that she had her granddaughter’s consent prior to the time of the shift, but rather consent to the shift was an inference the Judge drew from the mother’s (post-shift) consent to the respondent having care.

Australian Government, and the inability of the appellant himself to take care of the child.

[21] Taking “those three key facts” into account,¹⁶the Judge concluded that “as a reasonable person [the appellant] would have given his consent to the relocation because there was no other viable option.” The Judge went on to state that “therefore on the balance of probabilities I think it is likely, when the consent was requested, he would have given it”.¹⁷The Judge also observed that the appellant has had a problematic relationship with his own father, and reiterated his conclusion that the appellant did consent, but “subsequently resiled from that consent in the face of pressure from his father”.

[22] In the event he was wrong on consent, the Judge went on to consider s 106(1)(c)(ii) of the Act, which allows the court to not make an order for return if the respondent satisfies the court that the child’s return would put the child at “grave risk” of being placed in an “intolerable situation”.

[23] The Judge said there were “a number of gaps in the evidence” as to the grave risk of the child being placed in an intolerable situation.¹⁸He found the Australian legal system would ensure the child’s best interests and welfare. But he further found that there are limits in the court’s jurisdiction, including, for example, ordering the social security agency to pay a benefit to the respondent or her husband were they to return to Australia; orders regarding pensions or other financial assistance; or the likelihood of the mother’s deportation.

[24] Ultimately, the Judge was satisfied that an intolerable situation would be created by an order for return, because:

¹⁷It is this passage in particular which Ms Blackford submits shows the Judge applied a wrong test in relation to consent.

¹⁸The Judge considered two likely scenarios: first, the respondent going back to Queensland with the child; and second, the respondent not going back with the child, in which case he concluded the child would have to go into a foster care placement pending a parenting assessment being made of the appellant and paternal grandfather. The Judge noted that, on the evidence before him, it was unlikely either would be able to provide day to day care of the child.

(c) The paternal grandfather has no standing and no relationship with the child, and the Judge had serious doubts about his ability to parent;

(d) If the great grandmother goes to Australia she will have no home and no income; and

(e) The child is likely to be placed in foster care for up to 12 months while the application for relocation is heard and determined. The Judge said that this will cause psychological damage to the child being away from the persons who have cared for him for the last three-and-a-half years.

[25] The Judge accordingly found that “an order for return would create an intolerable situation and the defence asserted by the respondent has been made out”.

(a) First, did the Judge err in the test he applied when determining the issue of consent? Ms Blackford, counsel for the appellant, submits that the Judge applied the wrong test.

(b) Second, and irrespective of the above, did the Judge err in finding the appellant had consented to the child’s relocation to New Zealand?

Ms Blackford submits a finding of consent was not open to the Judge on the evidence.

(c) Third, did the Judge err in finding (in the alternative to consent) that there is a grave risk that the child’s return would place the child in an intolerable situation? Ms Blackford submits that the Judge ought not to have considered this defence, given it had not been pleaded, raised or argued during the hearing itself. Further, she submits that the evidence falls far short of giving rise to the defence in any event.

(d) Finally, did the Judge err in failing to consider the residual discretion under s 106, namely whether to make an order for the child’s return despite a defence having been made out? Ms Blackford submits that the Judge simply did not exercise the residual discretion, and had he done so, an order for return ought to have been made.

[27] An appeal against the Judge’s findings as to whether or not s 105 has been made out, and then whether any defences pursuant to s 106 have been proved, proceeds by way of a general appeal.¹⁹Accordingly, this Court is free to reconsider the Family Court’s Judgment and to substitute its own views on questions of fact and evaluation, if satisfied that the Family Court was wrong.

[28] Where the Family Court Judge was required to exercise a discretion (namely the residual discretion contained in s 106 of the Act), this Court should only interfere if it is satisfied the Judge acted on a wrong principle, took into account irrelevant matters, failed to take relevant matters into account, or was plainly wrong.²⁰

[29] Ms Blackford also emphasised that, as Hague Convention proceedings are normally dealt with on affidavit evidence only, this Court need not show the normal deference to the lower Court (in terms of the lower court being in a position to assess the evidence as it unfolds and make credibility findings). While that may be correct, the Court of Appeal has observed that, given the summary nature of Hague Convention proceedings and the specialist nature of the Family Court, decisions should not be disturbed too readily on appeal (although such “deference” cannot apply if the Family

_{Court decision has proceeded on the basis of an error of law or
principle).}²¹

[30] There was no real dispute, either in the Family Court or on appeal, as to the proper test for the defence of consent. This was addressed in the often-cited decision of Re K (Abduction: Consent).²²In that case, Hale J (as she then was) examined two competing approaches to consent, broadly categorised as a narrow and a broad approach. I consider it useful to set out Hale J’s discussion of the competing approaches in full, as it informs the approach she considered to be correct (and which has subsequently been adopted in this country):²³

Having reached that conclusion on the facts, is that sufficient to amount to consent for the purposes of the Convention? My attention has been drawn to two recent decisions in this court. The first is by Wall J, a decision in Re W (Abduction: Procedure) [1995] 1 FLR 878. At 888 he says this about the issue of consent:

13(a) "consent" defence under The Hague Convention, the evidence for establishing consent needs to be clear and compelling. In normal circumstances, such consent will need to be in writing or at the very least evidenced by documentary material. Moreover, unlike acquiescence, I find it difficult to conceive of circumstances in which consent could be passive: there must in my judgment be clear and compelling evidence of a positive consent to the removal of the child from the jurisdiction of his habitual residence.'

1 FLR 414. At 418-19 he considers with care and, of course, the greatest of respect the views which had been expressed by Wall J in Re W. At 418 he says that he cannot agree with the proposition that 'in normal circumstances such

consent will need to be in writing or at the very least evidenced by documentary material' and, as he later put it, 'in most cases evidenced

unequivocally in writing'. Holman J points out that Art 13 does not use the words 'in writing' and that:

'. . . parents do not necessarily expect to reduce their agreements and understandings about their children to writing, even at the time of marital breakdown. What matters is that consent is "established". The means of proof will vary.'

He goes on, at 419, also to disagree with the proposition that 'it is difficult to conceive of circumstances in which consent could be passive'. Of course, it all depends on what is meant by 'passive', and he points out:

'If it is clear, viewing a parent's words and actions as a whole and his state of knowledge of what is planned by the other parent, that he does consent to what is planned, then in my judgment that is sufficient to

satisfy the requirements of Art 13. It is not necessary that there is an express statement that "I consent". In my judgment it is possible in an appropriate case to infer consent from conduct.'

They are, however, both of them in agreement that the issue of consent is a very important matter:

'It needs to be proved on the balance of probabilities, but the evidence in support of it needs to be clear and cogent. If the court is left uncertain, then the "defence" under Art 13(a) fails.'

For my part, and with the greatest of respect, I prefer the views expressed by Holman J on those two issues. It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct. I am not saying that this is the latter sort of case. If it is a case of consent, it is a case of express consent resulting from the conversation which I have found as a fact took place as the mother describes it.

[31] New Zealand courts have since adopted this approach. Mr Ashmore referred me to Guest v Simons,²⁴PIC v GCK²⁵and Andrews v Secretary for Justice.²⁶In the latter case, Arnold J for the Court of Appeal said:

[47] We agree with Ms Hart that 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 and does not raise an issue appropriate for a second appeal.

[32] Mr Ashmore noted (rightly in my view) that the proper approach to consent permits the Court to take into account a broad range of evidence. That is not, of course, to “water down” or otherwise diminish the requirement to reach a positive view that,

_{on the balance of probabilities, consent was actually given. The
question is not one of}

“implied” or “constructive” consent. Further, mere knowledge of relocation will not amount to consent. Nevertheless, the approach recognises that the combination of a broad range of facts and circumstances may ultimately satisfy the Court that, on the balance of probabilities, consent to relocation was actually given.

[33] As an example, Mr Ashmore referred me to a recent decision where the High Court took a broad approach to the evidence of consent.²⁷In that case, Duffy J observed that:

[93] The contemporaneous evidence as to each party’s stance on this issue [of consent] is not plentiful. There is evidence from a few Facebook posts and texts. There is also circumstantial evidence from which inferences as to the appellant’s stance regarding consent can be drawn.

[34] Her Honour went on to observe that evidence in these cases is often not plentiful, given the proceedings are dealt with expeditiously and on the basis of whatever evidence is available.²⁸

[35] Finally, I note that while consent may be withdrawn before it is acted upon, it cannot be withdrawn after a child’s removal.²⁹

[36] I make one further observation of some importance to cases such as this one. There is no doubt that the court considering the issue of consent must be satisfied of that fact on the balance of probabilities. As set out in of Re K (Abduction: Consent), if the court is “left uncertain” as to consent, the defence must fail.³⁰But care must be taken that this does not lift the standard of proof from the balance of probabilities to proof beyond reasonable doubt. A similar note of caution was expressed by the Court of Appeal in Basingstoke v Groot, when considering the proper approach to assessing competing affidavit evidence in Hague Convention cases. Having referred to observations of Butler-Sloss LJ in Re F (A Minor)(Child Abduction)³¹on that issue,

²⁹Re P-J (Children) (Abduction: Consent) [2009] EWCA Civ 588, [2010] 1 WLR 1237 at [48]; BK v

[39] We consider that the approach of Butler-Sloss LJ is too extreme. The fact that the evidence has not been tested must be taken into account. However, the standard of proof remains on the balance of probabilities and Butler-Sloss LJ’s approach risks raising that standard. 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.

[37] As well as the caution in respect of lifting the standard of proof, the above extract is a helpful reminder of the proper approach to assessing competing affidavit evidence in cases of this kind.

[38] Ms Blackford submits the Judge wrongly found “implied” consent by basing the test for consent on what a “reasonable person” would have done in the circumstances, rather than what the appellant actually did or did not do.

[39] I am not persuaded, however, that the Judge applied an incorrect test. The Judge clearly set out the proper test for consent, and Ms Blackford accepts that his statement (as opposed to his application) of the test was correct. Rather, I read that aspect of the Judge’s decision on which Ms Blackford relies as part of the Judge’s reasoning as to why he found the appellant had consented to the child’s relocation. As noted in Basingstoke v Groot above, a court’s assessment of competing documentary evidence can include the “inherent probabilities” of the competing claims. Ultimately, the Judge stated on more than one occasion that in light of the evidence as a whole, he considered that the appellant had in fact consented to the child’s relocation.³³

[40] Ms Blackford submits the evidence simply does not establish, to the requisite standard, that the appellant consented to the child’s relocation to New Zealand. She says there is no “clear and cogent” evidence of this. Ms Blackford further submits that the relocation occurred in a context where the Australian court proceedings had already been commenced, and it would have been “logically inconsistent therefore to

assume that the appellant, in light of that application, would have consented to the child relocating to New Zealand.” In those circumstances, and taking into account the appellant’s sworn affidavit evidence that he did not consent, Ms Blackford submits that a finding of consent was not open to the Judge.

[41] I have carefully considered all the evidence, the parties’ submissions, and

Mr Ashmore’s submissions as counsel assisting the Court. In short, I find myself in agreement with the Judge that the appellant consented to the child being returned to New Zealand. I should emphasise I have reached this view by considering only the evidence produced in the Family Court for these proceedings.

[42] As Duffy J observed in BK v CJ & KJ, the contemporaneous evidence on these matters will often not be plentiful. It would of course be far more preferable for consent to be given in writing. However, were that to be the case, one might expect that cases of disputed consent would not often come before the courts, as the evidential foundation for consent would be clear. Nor in many family dynamics can it be expected that issues such as consent will ordinarily be reduced to writing.

[43] There is clearly a sharp conflict in the evidence on the issue of consent. The respondent is firm that she had the appellant’s consent prior to the relocation. The appellant says that he did not consent. Assessing those competing positions in the manner endorsed by the Court of Appeal in Basingstoke v Groot, I prefer the respondent’s evidence. I say this for the following five reasons.

[44] First, I consider the respondent’s narrative (and also that given by her daughter, the child’s grandmother) to be more natural and credible. In her affidavit filed to support the New Zealand proceedings she commenced in July 2016 (well before the Hague Convention proceedings),³⁴she deposed that both the appellant and his mother (i.e. the paternal grandmother) were supportive of the relocation to New Zealand. That evidence is consistent with written documentary evidence from at least the appellant’s mother (written before the relocation), saying she both knew about and supported that relocation before it occurred. The respondent’s affidavit did not overly focus on the question of the appellant’s consent, which might have been expected if the respondent

was concerned as to whether it had in fact been given. Rather, the respondent focused more on the mother’s position, and candidly acknowledged that she did not have the child’s mother’s consent prior to the relocation.

[45] In contrast, the appellant’s affidavit is more “formulaic”, framed in an overly similar way to his father’s evidence, and is internally inconsistent in some significant ways. For example, in his primary affidavit, the appellant says the child was taken from Australia to New Zealand in early July 2016 without his knowledge or consent. He said he only found out the date on which the child was taken from Australia when he was served with the respondent’s New Zealand proceedings in early September

2016. Yet in his reply affidavit, he deposes that he did consent to the child being removed from Australia in early July 2016, but only for a short two-week holiday (as has occurred in previous years). As will be appreciated, that is quite a significant shift in the evidence, and if the appellant had indeed consented to removal, but only for a short holiday, this ought to have been a key feature of his primary affidavit.

[46] Second, I consider the respondent’s evidence to be more consistent with the contemporaneous documentary evidence (which is admittedly limited). This is particularly so in relation to contemporaneous text messages sent by the appellant to the respondent and the respondent’s daughter (i.e. the maternal grandmother):

(a) The child’s maternal grandmother annexes to her affidavit a text she received from the appellant in August 2016, shortly after the child had been brought to New Zealand. She deposes that since the respondent and the child had been in New Zealand, she remained in contact with the appellant and that he had never indicated he was unhappy about the child being in New Zealand. In the text message annexed to her affidavit, the appellant demonstrably has a good relationship with the maternal grandmother and goes on to state that:

And I will i got a mate just released a cd he wants me to do an ep and spit with him but yeah after all that cone to nz and stay for a while so I can spend some time with child [sic].

This text is inconsistent with someone who has recently found out his child has been wrongfully taken to New Zealand and who has, as the

appellant says in one of his affidavits, repeatedly demanded the child’s return. The appellant says in a subsequent affidavit that he never intended the text to indicate his approval of the relocation, but rather it shows he wanted to visit the child in New Zealand so their relationship would be stronger on his return to Australia. I consider this explanation adds an unwarranted and “advocacy-like” gloss to the plain and straightforward content of the text message itself.

(b) In a further text message from the appellant annexed to the maternal grandmother’s affidavit, said to have been received from the appellant in September 2016 (again shortly after the relocation), the appellant expresses the view that the child is “better in new zealand” (sic). The appellant does not comment or challenge this text in his reply affidavit. Again, this is inconsistent with the appellant’s evidence that he objected to the relocation and was taking all steps possible to have the child returned to Australia. Further, the text is consistent with the respondent’s evidence that the appellant had told the respondent he thought the child would be better off in New Zealand (and so consented to the relocation).

2016 (i.e. shortly before the relocation, though after the paternal grandfather had commenced the Australian proceedings) is consistent with the respondent’s evidence that the appellant has a difficult relationship with his father. In this text, the appellant forwards the respondent a text he had sent to his own father, essentially telling his father to “back off”, and to stop what the appellant clearly believes to have been a campaign of text message bombardment by the paternal grandfather to the respondent. Importantly, the text message does not indicate any malice or animosity between the appellant and the respondent at that time (and indeed indicates quite the opposite), which might have been expected had the respondent been “blocking” the appellant’s access to his child at that time (as the appellant now suggests).

[47] Ms Blackford submits that the “post-relocation” evidence is not relevant to the question of consent, and that even if it is, little weight should be attached to it, given it is framed in “text speak” and in a confused way. I disagree. While the post- relocation evidence obviously does not bear directly on the question of consent, it is nevertheless forms part of the factual matrix against which the credibility and reliability of the competing consent claims can be assessed. Further, I consider the appellant’s text messages to be much more natural and reliable evidence of his stance at the time, when compared to his (after the event) affidavit evidence.

[48] Third, there is the delay in bringing the Hague Convention proceedings, and the absence of any evidence of the appellant complaining about the relocation in the intervening period. There is no explanation why (if the appellant did not consent to the relocation, but rather understood the visit to New Zealand to be a two-week holiday only) he did not raise any concern as to the child’s whereabouts after mid-July 2016. Further, there is no evidence the appellant objected to the relocation (as opposed to his father) until the filing of these proceedings, some eight months after it occurred. I accept that knowledge of relocation, and a failure to object, does not itself mean the appellant consented to it. However, the fact that no objection was taken is consistent with the respondent’s evidence that the appellant had consented to the relocation, but has subsequently “retracted” that consent under pressure from his father (I return to this latter point below).

[49] The appellant said in his affidavit that “I have been trying to get the child returned to Australia since I was made aware in August 2016 that the child had been removed from Australia”. But the only available contemporaneous evidence is inconsistent with this statement. He was clearly in text contact with the respondent and the maternal grandmother both before and immediately after the relocation, yet he makes no demands for the child to be returned to Australia. Further, the respondent says the only contact to her from the appellant after to the relocation was a phone call in August 2016 to wish the child a happy birthday, but that the appellant did not want to speak to the child, as he (i.e. the father) was “not in a good way”. The appellant does not dispute this in his reply affidavit.

Ms Blackford invites me to draw alternative inferences, namely that delay is inevitable in proceedings of this type. However, the appellant advanced no other evidence to explain the delay, and there is no evidence he took steps in the interim to object to the relocation. I again accept that delay in and of itself does not establish consent. But the appellant’s inaction is further material against which to assess the credibility and reliability of the competing claims on consent.

[51] Fourth, the documentary evidence demonstrates the respondent had not kept the intended relocation a secret, at least from appellant’s mother. In a letter from the appellant’s mother dated 28 June 2016 (shortly before the relocation), she states that:

...[the respondent and her husband] intend to relocate to New Zealand with my grandson....In moving back to New Zealand they will have considerable family support.

[52] The appellant’s mother said the appellant was at that time living at home with her. There is nothing in the evidence to suggest this is incorrect. If the respondent had been concerned at the appellant’s likely attitude to the relocation, it seems unlikely she would have informed the appellant’s mother of the intention to relocate to New Zealand, at a time when the appellant was living with her.

[53] Finally, but not unimportantly, my very clear view from reviewing all of the evidence is that the present Hague Convention application is being driven by the paternal grandfather and not the appellant:

(a) First, and as noted, the Australian proceedings were commenced by the paternal grandfather (as applicant), rather than the appellant himself.

(b) Second, the only evidence of any concern being raised in relation to the relocation from August 2016 is by the paternal grandfather and not the appellant.

(c) Third, the evidence corroborates the respondent’s claim that the appellant has a difficult relationship with his father, and supports the conclusion that the appellant has been pressured by his father to retract

his consent. The written correspondence from the appellant’s mother confirms this difficult relationship. However, and more importantly, so too does the appellant’s own text message to his father in June 2016, shortly before the relocation. In it he says:

Deadset mate I don’t need you to try and stick up for i remaim neutral in this childish argument and for fuck sakes you keep sending [the respondent] messages theres a reason you don’t have a good amount of contact between her you and [the child] because you act like this an immature stubborn spoilt brat who really needs to be knocked down a hundred pegs I sware to god you keep this stupid text up with [the respondent] I will ensure she charges you with harassment. [sic]

The appellant had forwarded this text message to the respondent at the time, noting “that’s what i sent him” (sic).

(d) Fourth, in the text message the appellant sent to the maternal grandmother shortly after the relocation, and in response to the maternal grandmother’s observation that she had had “just [given] up” Family Court proceedings in which she had been involved, the appellant replied:

[the paternal grandfather] won’t that’s the difference even if he’s better in New Zealand he won’t stop till he’s home and he spends more time with him”.

The maternal grandmother responds “your mum told [the respondent] that too”, to which the appellant replied “yeah well it’s the truth unfortunately”.

Again, the text gives no sense of concern on the part of the appellant to the child being in New Zealand and reflects the appellant’s view of his own father’s tenacious nature in relation to court proceedings of this type, being that the paternal grandfather, “won’t stop” until the child is in Australia.

the New Zealand proceedings. In that correspondence, the paternal grandfather states “I do not consent” (i.e. focussing on his own position, rather the appellant’s) and that the respondent is “seriously obstructive with the relationship between the child’s grandfather (myself) and others and this matter should be addressed in Australia” (again focussing on the paternal grandfather, rather than the appellant). Also in that correspondence, the paternal grandfather states “please note I am in the process of raising a Hague Application” (emphasis added), and that “my application at the Australian Family Court was also about stopping [the child] from needing that done again for him” (emphasis added). This, and the contents of the paternal grandfather’s own affidavit evidence, strongly indicates he is the driver behind both the Australian and these Hague Convention proceedings. And again, while this is not directly relevant to the appellant’s consent, it is consistent with the respondent’s version of events, namely that the appellant did in fact consent, but was later persuaded by his father to retract it.

[54] Accordingly, I agree with the Family Court Judge that, on the balance of probabilities, the appellant consented to the child relocating to New Zealand with the respondent. The evidence filed on behalf of the respondent reflects a more consistent and plausible account of relevant events, when assessed against the available evidence as a whole. In particular, the appellant’s own conduct and words, both before and after the relocation, are more consistent with the respondent’s version of events. In contrast, significant aspects of the appellant’s affidavit evidence are inconsistent with the evidence as a whole, including his own contemporaneous text messages. The contemporaneous evidence is consistent with the appellant having a good and ongoing relationship with the respondent and the respondent’s family at the time of the relocation, in contrast to his own (difficult) relationship with his father. The text message evidence also demonstrates the appellant’s view at the time that child would be better in New Zealand, and his view of his father’s likely approach to the relocation.

[55] I accordingly find that the appellant consented to the relocation, but later retracted that consent under pressure from his father.

[56] Given my conclusion in relation to consent, it is not necessary to consider in detail the Judge’s alternative finding that an order for the return of the child to Australia would have placed the child at grave risk of being in an intolerable situation.

[57] However, I record that I agree with Ms Blackford’s submission that it was unfortunate that the Judge embarked on consideration of and determination of this defence, when it had not been formally pleaded or argued before the Court.³⁵This deprived the appellant of a proper opportunity to address the Family Court on the issue. This is particularly so given the defence is “not an easy one to make out”.³⁶Further, and presumably because the issue had not been properly ventilated before the Family Court, the Judge himself acknowledged that there were a number of gaps in the evidence on this topic.

[58] For completeness, and at least on the (incomplete) evidence was before the Family Court on this issue, I would not find the defence had been proved to the requisite standard. Had I considered there was a prima facie case for the defence being made out, I would have remitted this aspect of the decision back to the Family Court, so it could be fully argued with appropriate evidence.

[59] It therefore remains to consider whether the Judge erred in not considering the residual discretion as to whether an order should nevertheless be made returning the child to Australia.

[60] Ms Blackford submits that the Judge simply did not exercise the residual discretion and if he had done so, an order for return would have been made.

Mr Ashmore, counsel assisting the Court, noted that it is difficult to dispute the appellant’s submission that the Judge did not exercise the residual

³⁶Andrews v Secretary for Justice [2007] NZCA 223, [2007] NZFLR 891 at [51].

residual discretion. In the absence of any express statement in the Judgment, it is not possible to conclude whether the Judge actually turned his mind to the matter.

[61] I have considered whether this aspect of the decision ought to be remitted to the Family Court. However, both Ms Blackford and Mr Ashmore noted that it was open to this Court to consider the residual discretion afresh, given the nature of Hague Convention proceedings. I agree. Given I have all the written evidence that was before the Family Court Judge, I am as well placed as the Family Court Judge to consider the proper exercise of the residual discretion. And as Mr Ashmore further noted, to do so would be consistent with the need to deal expeditiously with Hague Convention cases.

[62] Ms Blackford rightly submits that the exercise of residual discretion involves the balancing of the welfare and best interests of the child and the significance of the general purposes of the Hague Convention.

[63] The majority of the Supreme Court in Secretary for Justice v HJ summarised the twin objectives of the Hague Convention as being:³⁷

(a) To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

[64] The majority noted that while there is no “presumption of return” after the establishment of a ground for refusal to make an order for return,³⁸the paramountcy principle of the Act (namely the welfare and best interests of the child) cannot apply so as to effectively “dictate” the exercise of the residual discretion.³⁹The majority

_{noted that where an exception, or defence, to an order for return has
been made out,}

the Convention envisages an inquiry into whether its deterrent purposes should prevail over the interests of the particular child or children.⁴⁰

[65] The residual discretion of course only falls for consideration upon a finding that, relevantly for this case, the applicant for an order for return consented to the removal. In those circumstances, the principle that children should be promptly returned to a Contracting State from which they have been wrongfully removed could be said to have less force. While there is still a “wrongful” removal, given the s 105 jurisdictional factors will have been made out,⁴¹the applicant will nevertheless have been found to have consented to that state of affairs coming about.

[66] That the deterrent purposes of the Hague Convention may have less weight in such circumstances was a point recognised by Hale J in Re K (Abduction: Consent):⁴²

The final thing which I have to weigh in the balance is the purpose of the Convention. This is something to which the courts attach the greatest possible importance. We all want children to be returned as soon as possible to the place from which they have been wrongfully removed. The reasons why the Convention exists to secure this are partly that it is bad for children to be uprooted from one jurisdiction to another and partly to fulfil the obvious proposition that if there is a dispute between parents as to the future of their child it is better dealt with in the courts of the country where the child has hitherto been habitually resident because that is where the best information lies.

However, I have to bear in mind in particular that that factor has a different weight in a case in which consent to the removal or retention has been established. Indeed, in cases of consent, all of those factors carry a rather different weight. But if it has been agreed between parents that a mother may bring her child to another country and, if she so chooses, remain here with the child, then frustrating those two purposes of the Convention scarcely comes into question.

[67] Mr Ashmore noted that he could find no authority where the consent defence has been made out, yet the court has exercised the residual discretion to return the child to the other Contracting State. Mr Ashmore also drew my attention to the decision of the English Court of Appeal in Re M (Abduction: Appeals), in which

_{Sumner J (at first instance) is recorded as having observed that
“I am not aware of a}

case where discretion has been exercised to order the return of the child where consent to the removal is proved”.⁴³The English Court of Appeal in Re P (A Child) also noted that if consent is made out, it is difficult to see why the court should not exercise the discretion conferred by Article 13 (i.e. s 106 of the Act) to permit the child to remain in the country to which it had been agreed he or she could go.⁴⁴

[68] Ms Blackford did not refer me to any authorities where the defence of consent has been made out, yet the discretion had been exercised to return the child the other Contracting State. Nevertheless, it must be recognised that there may well be cases where the defence is made out, yet it is appropriate to make an order for return. Each case will of course need to be considered on its own facts, and the exercise of the discretion cannot be fettered by a “default” position of the child remaining in the country to which he or she has been taken in every case where consent has been proved.

[69] Ms Blackford submits that the residual discretion should be exercised in favour of an order for return in this case, given:

(a) This is a young child who has lived his whole life in Australia and where his entire paternal family and his mother and father reside.

(d) Proceedings are currently before the Federal Circuit Court of Australia and it ought properly to be that Court which makes decisions in relation

⁴⁴Re P (A Child) [2004] EWCA Civ 971, [2005] Fam 293 at [33], cited in AHC v CAC [2011] 2

(e) The respondent has the option of applying to the appropriate Australian court to relocate the child to New Zealand. She chose not to, and this Court “cannot endorse abduction as a reasonable alternative”.

(f) The appellant has provided evidence of the improvement in his mental health functioning and that he is addressing his addiction issues.

(g) That the appellant has indicated a desire to one day to obtain custody of his son and to be a better father. A failure to return the child to Australia will defeat that.

(h) That this is a child with special needs who had been under the care of a clinical psychologist in Australia.

(i) That a clear message must be sent that the unilateral removal of children from one jurisdiction to another will not be tolerated.

[70] I am not persuaded that these factors, either individually or in combination, warrant the exercise of the residual discretion in favour of an order for return of the child to Australia.

[71] The matters at (e) and (i) must be viewed against the backdrop of the appellant consenting to the child’s relocation to New Zealand. The evidence demonstrates the mother is currently agrees with the respondent having care of the child, at least until the mother’s care of and contact with the child can be considered. And while the mother is currently serving a custodial sentence in Queensland, there is no evidence as to whether, on her release, she will seek to remain in Australia on, will be deported to New Zealand, or will return to New Zealand voluntarily. It must be a reasonable possibility that the latter will be the case, given her consent to the respondent having day to day care of the child, and that consent having been given well after the respondent had relocated to New Zealand.

[72] It is true that the evidence demonstrates the child has lived in Australia for the majority of his life. But that is to be balanced against the fact he is still very young

(and was even more so at the time of relocation), and that he has now spent more than a year in New Zealand. The evidence confirms that his paternal family is in Australia, though of that immediate family, both the paternal grandmother and the appellant (as has been found) were supportive of the child’s relocation to New Zealand. The child has a half-brother in Australia, though there is no evidence he is close to him, the respondent saying that the child only saw his half-brother twice in 2015. In contrast, the evidence demonstrates a substantial family network in New Zealand, including cousins around the child’s own age, and one in particular to whom he is close.

[73] I also take into account that in the case of an order for return, and if the respondent did not return with him (even temporarily), it is clear the appellant is not in a position to care for the child, and at least a question mark exists in relation to the paternal grandfather. There is evidence that the appellant’s mental health is improving, and he is taking steps to manage his earlier addiction and to become a better father. He is to be commended for those efforts. Yet the appellant is also quite candid and responsible for noting that, at this time, he does not have the confidence to care for the child. There is no clear evidence of the paternal grandfather’s ability to care for the child, nor any clear evidence of him having any sustained contact with the child, and disputed evidence as to whether he has ever had unsupervised contact.

[74] There are now court proceedings on both sides of the Tasman in respect of the longer term care of and contact with the child. Each court system can be assumed to promote the longer term welfare of the child. I do not consider the fact that the paternal grandfather has proceedings on foot in Australia justifies making an order for return. The appellant can presumably participate to the fullest extent he wishes in court proceedings in either Australia or New Zealand in respect of the longer term care of and contact with his child.

[75] Finally, the evidence demonstrates that the child has had some behavioural issues in the past. Counselling sessions with the child in Australia (which had been instigated by the respondent) ceased in May 2016, with the child reported to have made good progress. There is no reason why any further such assistance (if required) could not be provided in New Zealand.

[76] Accordingly, balancing the purposes of the Convention with the child’s welfare and best interests, and noting the appellant consented to the relocation, I am not persuaded that the residual discretion should be exercised in favour of an order for return being made.

High Court of New Zealand Decisions

H v R [2017] NZHC 2617 (25 October 2017)