Hague Convention: Two New Zealand children who were retained by their mother in Australia have been ordered to be returned to their home country after the father successfully launched a return order application pursuant to Australia’s regulations relating to the Hague Convention on the Civil Aspects of International Child Abduction. The mother had argued the father had either consented or acquiesced to the kids’ retention in Australia, but the court rejected this. It’s worth taking a brief look at the issues in this case and what the difference is between consent and acquiescence.
In the case, pseudonymised as Department of Child Safety, Youth & Women & Dajani, the father made an application for a return order pursuant to the legislative framework of the Family Law (Child Abduction Convention) Regulations 1985, which governs how Australia meets its obligations as a contracting state to the Hague Convention.
The father in this matter is a NZ citizen and the mother an Australian citizen. They had lived in NZ as de factos for about eight years. The children, aged 2 and 4, were born in NZ and are NZ citizens. They had travelled with their mother from New Zealand to Australia with the father’s permission but were then kept in Australia, after which the father sought their return to NZ.
The mother argued the father had either consented to the removal or acquiesced to the retention in Australia. Although the father agreed he had consented to the children travelling from NZ to Australia, he argued their trip was only intended to be temporary, even if for an indefinite period.
This matter was not a hearing on the merits of a ‘custody or access’ case (to use the terminology in the Hague Convention), but a hearing to determine the appropriate response in accordance with Australia’s obligations under the Convention. That’s because the appropriate forum for resolving parenting disputes is always in a child’s country of habitual residence, so this matter was only to decide the issue of whether the children should be returned to NZ.
Was the removal or retention wrongful?
First the courts have to establish that a removal or retention of a child away from their home country is wrongful. This is established if the court is satisfied of the following:
- The child is under 16 years of age; and
- The child habitually resided in a convention country immediately before their removal to, or retention in, Australia; and
- The person seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before their removal to or retention in Australia; and
- The child’s removal to or retention in Australia is in breach of those rights of custody; and
- At the time of the child’s removal or retention, the person, institution or other body was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights had the child not been removed or retained.
In this case, each of these criteria was met, so the court was able to find that the mother had wrongfully retained the children.
Are there any exceptions?
Even if wrongful retention is established as above, the person opposing a child’s return (in this case the mother) has the opportunity to establish that there is an exception as set out in the Regulations. Exceptions include where the person seeking the child’s return wasn’t actually exercising rights of custody, or they had consented or acquiesced in the child being removed or retained, or if there is a risk of harm to the child if returned under the Hague Convention.
The mother attempted to establish an exception on the basis that the father had given consent for the children to go to Australia, or that he had acquiesced to them staying in Australia.
Consent vs. acquiescence
These are distinct notions involving the state of mind of the left-behind parent. Consent concerns the state of mind of the left-behind parent before the child was removed to, or retained in Australia. Acquiescence concerns their state of mind after the removal or retention. Acquiescence operates to effectively estop an applicant parent from demanding the immediate return of a child, or is to be seen as waiver by the applicant parent of the right to immediate return. Acquiescence, once established is irrevocable. In other words, you can’t acquiesce now and change your mind, seeking return of a child, later.
Consent and acquiescence can both be inferred from words and conduct, but have to be “real and unequivocal” and the evidence supporting the inference has to be “clear and cogent”. Note that words and conduct can include passive inaction over time where you would expect action to be taken.
An interesting point is made by the judge in this matter, who notes that “there cannot be true acquiescence where the parties are in a state of confusion and turmoil”. And the judge noted that here, “It seems to me that the relationship was on again off again. The exchange of messages between the parents demonstrate an ongoing state of “confusion and emotional turmoil” e.g. one minute they were abusing each other and the next they were expressing undying love. “ This cast doubt on whether any statements made by the father which could be interpreted as acquiescing, were in fact legitimate.
Regardless, there was enough evidence that the father had not in fact provided consent or had acquiesced to the retention in Australia. After a forensic look at the evidence which included examination of text messages and evidence from third parties like accountants and even neighbours, the judge found the evidence “falls far short of establishing the father’s consent to removal or retention”.
A lot turns on the careful examination of semantics – such as when the mother texted the father that “she was considering moving back to NZ ‘later’, which [the court] infers refers to later than had been agreed…”
But other evidence considered included such factors as the mother “leaving behind precious items, her hairdressing tools of trade, substantial quantities of clothing for herself and the children, and leaving the children’s rooms intact”.
Does the court consider a child’s wishes in Hague Convention matters?
You may be curious as to whether a child’s wishes in relation to a return application are considered. In fact, the court will also look at the following factors:
- Whether the subject child objects to being returned,
- Whether the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes,
- Whether the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views, or
- Whether the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
In this case, these factors were not relevant due to the tender ages of the children.
To get the complete picture of the mother and father’s evidence in this case, and how the court arrived at its conclusions, you can find the judgment here.
If you need assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
