NEW ZEALAND – MADDEN – 1994 (Return ordered) THE CENTRAL AUTHORITY FOR NEW ZEALAND (for the father, MADDEN) v HOFMANN: Child was taken by the mother to New Zealand. Child was ordered returned to Australia.
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NEW ZEALAND – MADDEN – 1994 (1994) (Return ordered) THE CENTRAL AUTHORITY FOR NEW ZEALAND (for the father, MADDEN) v HOFMANN: Child was taken by the mother to New Zealand. Child was ordered returned to Australia.
IN THE DISTRICT COURT HELD AT CHRISTCHURCH, NEW ZEALAND
FP 009/478/94
Applicant: THE CENTRAL AUTHORITY FOR NEW ZEALAND for Paul
Lawrence MADDEN
Respondent: Llonka HOFMANN (aka Susan HOFNIANN)
Date of Hearing: 09 and 21 June 1994
Date of Decision: 30 June 1994
Counsel: Mr O’Donnell for applicant
Ms Mitchell for respondent
Mr Rout for child
DECISION OF JUDGE J J D STRETTELL
This application under s12 of the Guardianship Amendment Act 1991
relates to Angela Jean Madden, a female child born in Bentley,
Western Australia on 3 April 1989. Pursuant to application made on
31 March 1994 Paul Lawrence Madden applies to have the child
returned to Australia.
Apart from a visit to her maternal grandmother in New Zealand in
1991, Angela since birth, has been domiciled in Australia
initially, in the care of the applicant and respondent and more
recently, since their separation in 1990, in the custody of her
mother.
Mr Madden by way of affidavit states that Angela’s removal from
Australia was in breach of his rights of custody of the child
which he was exercising at the time of her removal.
The facts are that the applicant and respondent lived in a
reiationship for some years from 1984 to 1990. Angela was born on
13 April 1984, the only child of that relationship.
The parties separated in May 1990. Following separation Angela and
Miss Hofmann lived in Western Australia while Mr Madden returned
to Canberra. Between 1990 and May 1992 Mr Madden maintained his
relationship with his daughter, several times visiting her from
Canberra and also telephoning on a weekly basis.
While living in Perth Angela attended a day-care centre, while
there she was sexually abused by the husband of a day-care worker.
From affidavits filed there appears littJe dispute that the abuse
took place, although, no person was ever convicted of that abuse.
Possibly as a result of the abuse Miss Hofmann moved, in May 1992,
to Byron Bay, New South Wales. Care of Angela initially was shared
but after a period of some weeks, Miss Hofmann again took over the
day-to-day care of Angela with Mr Madden actively assisting,
including, providing long term relief care both in Byron Bay and
latterly in Canberra.
In June 1993 Miss Hofmann says that Angela disclosed to her that
Mr Madden had played “a sexual game with her”. Miss Hoffman says
she confronted Mr Madden with this allegation. He cried, and
stated that he would not do it again. This allegation is denied by
Mr Madden. Later Angela stated it was a cousin who had played the
game with her and not her father. Whatever the strength of the
allegation, it did not appear to result in any restriction on the
contact Mr Madden had with Angela.
Over Christmas 1993-94 Mr Madden cared for Angela for a week in
Canberra. In January Miss Hofmann went to live in Coffs Harbour to
be closer to her then boyfriend, John Hunter, to whom she was
pregnant. It is apparent that Mr Madden was unaware of this move
until well after it had taken place.
After the move to Coffs Harbour, Miss Hofmann stated in her oral
evidence that she became concerned as to Angela’s sexualised
behaviour. In February 1994 she came to the conclusion that Mr
Madden had abused Angela. She confronted Mr Madden with that
allegation and became frightened when she says he made threats to
kill her, her boyfriend and Angela. This Mr Madden denies and says
that he indicated he would apply for sole custody. Miss Hofmann
says she initially attempted to obtain nonmolestation orders
through the Magistrate’s Court but was unable to obtain them. She
then spoke to a solicitor by phone who advised her to leave
Australia and return to New Zealand. This she did.
Since flying to New Zealand on 25 March 1994 she has resided in
Christchurch with her mother.
Because of her concerns about Angela, she arranged for therapy
with Sarah Crane, a qualified therapist in Christchurch. Miss
Crane says that on 16 May Angela disciosed sexual abuse of her by
her father. Resulting from that disclosure an evidential interview
was arranged at the Department of Social Welfare. This interview
was undertaken by Katherine Crawford, a specialist interviewer
with some 11 years experience as a social worker and five years
experience as a member of a sexual abuse team. Miss Crawford had
conducted a large number of previous evidential interviews.
The interview was video taped and the court has had the
opportunity of viewing the tape. During the interview Angela
stated that she had been sexually abused by her father. She was
able to provide quite some detail in relation to the abuse, as to
the manner of the abuse and as to how it felt.
The disclosure by Angela left the interviewer in little doubt that
Angela had been sexually abused and that she had named her father
as the person who had abused her.
It is against that factual background that the application under
s12 of the Guardianship Amendment Act needs to be considered.
Section 12 states:
“Application to Court for return of child abducted from New
Zealand
(1) Where any person claims
(a) That a child is present in New Zealand; and
(b) That the child was removed from another Contracting
State in breach of that person’s rights of custody in
respect of the child; and
(c) That at the time of that removal those rights of
custody were actually being exercised by that person,
or would have been so exercised but for the removal;
and
(d) That the child was habitually resident in that
Contracting State immediately before the removal,
that person, or any acting on that person’s behalf, may apply
to a Court having jurisdiction under this Part of this Act for
an order for the return of the child.
(2) Subject to section 13 of this Act, where
(a) An application is made under subsection (1) of this
section of a Court; and
(b) The Court is satisfied that the grounds of the
application are made out, the Court shall make an
order that the child in respect of whom the
application is made be returned forthwith to such
person or country as is specified in the order.
(3) A Court hearing an application made under subsection (1)
of this section in relation to the removal of a child from
a Contracting State to New Zealand may request the
applicant to obtain an order from a Court of that state,
or a decision of a competent authority of that state,
declaring that the removal was wrongful within the meaning
of Article 3 of the Convention as it applies in that
state, and may adjourn the proceedings for that purpose
(4) Where
(a) An application is made to a Court under subsection (1)
of this section in respect of a child; and
(b) The Court
(i) Is not satisfied that the child is in New Zealand
or
(iii) Is satisfied that the child has been taken out
of New Zealand to another country,
the Court may dismiss the application or adjourn the
proceedings.”
It is not disputed by Ms Mitchell, as counsel for Miss Hofmann,
that the preconditions for the return of Angela to Australia are
made out.
1 Angela is present in New Zealand
2 The applicant has a right of custody in respect of Angela in
that in the terms of s4 he had a right jointly with Miss
Hofmann to possession and care of the child and that he was
resident in a Contracting Country namely Australia.
3 At the time of removal the child was habitually resident in
Australia.
The issue to be decided is whether the court has grounds in terms
of s13 to refuse the return of the child. Section 13 states:
“Ground for refusal of order for return of child
(1) Where an application is made under subsection (1) of
section 12 of this Act 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
subsection (2) of that section 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 one
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 or on whose behaH 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 subsequently acquiesced
in, the removal; or
(c) That there is a grave risk that the
child’s return
(i) Would expose the child to physicai
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 to
take account of 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) In determining whether subsection (1)(e) of this
section applies in respect of an application made
under section 12(1) of this Act in respect of a
child, the Court may consider, among other things,
(a) Whether or not the return of the child would be
inconsistent with any rights that the child, or
any other person, has under the law of New
Zealand relating to political refugees or
political asylum:
(b) Whether or not the return of the child would be
likely to result in discrimination against the
child or any other person on any of the grounds
on which discrimination is not permitted by the
United Nations International Covenants on Human
Rights.
(3) On the hearing of an application made under
subsection (1) of section 12 of this Act in respect
of a child, a court shall not refuse to make an order
under subsection (2) of that section in respect of
the child by reason only that there is in force or
enforceable in New Zealand a custody order relating
to that child, but may have regard to the reasons for
the making of that order.”
In terms of s13, therefore, the question to be asked is whether in
the light of the disclosure of allegations of sexual abuse by
Angela, the return to Australia would result in a grave risk to
the child in that it (1) would expose the child to physical or
psychological harm or (2) would otherwise place the child in an
intolerable situation.
The thrust of the respondent’s case is that given the evidence of
the sexual abuse disclosure and the absence of orders being in
place in the Australian jurisdiction ensuring that the child
remained in the care of the mother until matters had been fully
investigated in Austraiia there was such a grave risk.
For the applicant, Mr O’Donnell quite properly submitted that the
issue of whether there was a grave risk would only apply if Angela
was exposed to the father prior to enquiry in Australia. Mr
O’Donnell submitted that Mr Madden was not seeking the return of
Angela into his care in either an access or custodial basis and
that an order could therefore be made for the return of Angela.
The difficulty for the court was whether reliance on an
undertaking was sufficient or whether in fact the court could make
an order for return on conditions.
In the end the issue did not have to be determined by the court,
consent orders were made in the Australian Family Court which
overtook the necessity of the court considering this specific
issue – as I will later refer.
Setting the consent orders to one side, as I indicated to counsel,
I had initial concerns as to whether a return could be ordered on
conditions having regard to the wording of the Act. Subsequently I
have had the benefit of considering the decisions of Hammond
J in Adams v Wiqfield 11 FRNZ 270 and Judge Bouchier’s decision in
Damiano v Damiano (1993) NZFLR 549.
In Adams case, Hammond J considered that the Family Court had
jurisdiction to impose such conditions.
At page 276 he stated:
“What C and C and other cases show is that as one might have
expected, in a pragmatic way, where appropriate, courts have
also thought it appropriate to (on occasions) impose terms
or undertakings. Mr Geoghetan’s objection that there is
nothing specific in the legislation allowing undertakings is
not, I think, dispositive of that issue. Indeed, I would
have said that the general principle is precisely the
opposite; unless a statute specifically provides that an
order cannot be made on terms or with certain undertakings,
then such can be required. That has always been the equity
principle; and it is a principle which has routinely been
involved in family law matters.”
His Honour then went on to impose conditions relating to the
return of the child to Australia.
In Damiano, Judge Bouchier imposed what he stated to be
“reasonable safeguards” on the return of a child to Canada
including, an order as to occupation of the matrimonial home by
the mother and child in Canada, and supervision of access unless
otherwise ordered in Canada. It is difficult to know what force
such orders could have in the Canadian jurisdiction unless they
came within s22(L) of the Guardianship Act, but they are at least
an indication of the court having regard to the welfare of the
child as a subsidiary issue to the issue of forum.
Despite the authors of Butterworth’s Family Law in New Zealand
commentary stating (see para 6.111 p328) that a court cannot make
an order subject to conditions, there appears to be authority for
the view that in fact the court can make such an order for return
of a child subject to conditions. For the purposes of this case,
such conditions or undertakings were not in fact required.
In the case before this court, the facts prima facie disclose
sexual abuse, although such a disclosure has not been subject to
testing in court in any way, nor has the court heard from Mr
Madden. To the extent that the allegation is before the court
however, it is noteworthy that neither counsel nor myself have
been able to refer to any other case determined under the Hague
Convention in New Zealand dealing with sexual abuse allegations
involving a parent who sought the return of a child to its country
of domicile. The only relevant matter on the facts appears to be
the decision of Judge Carruthers in Wolfe v. Wolfe (1993) NZFLR
277, although, there the allegations appeared spurious.
There is no doubt that in the case before this court, that the
allegations are serious, they have a basis and will need thorough
investigation. It was on that foundation that the court proceeded.
Initially the court’s concern was that all evidence of disclosure
was in New Zealand. The position was unclear as to the approach to
be taken by Mr Madden should Angela be returned pending
determination of the allegations in Australia.
Adams v Wlqfield and Wolfe v Wolfe emphasise the heavy burden and
onus upon the respondent in satisfying the presence of a grave
risk in terms of s13(c)(i) and (ii). If there was to be a case
which satisfied that onus that a respondent carries then it must
most easily be met within the category where abuse, and more
particularly sexual abuse, of a child is raised. But it is not
merely the allegation of the risk that is relevant but
consideration of the consequences of this risk. As Judge Bouchier
said in Damiano v Damiano at page 554:
“I think also relevant to the establishment of risk, is not
merely the factual situation from which a child may have
come, but also the nature of the Family Law of the country
of origin and the ability of the law to afford protection.”
The New Zealand courts could undoubtedly have confidence that an
Australian Family Court had both the ability and inclination to
afford protection once the child was within jurisdiction and the
evidence available.
Our own approach to such allegations of sexual abuse as stated by
the Court of Appeal in recent cases of M v Y 1994 NZFLR pg 1 and S
S v S 1994 NZFLR pg 26 adopted the formulation of “unacceptable
risk of sexual abuse” stated in the Australian High Court decision
of M v M 1988 166CLR pg 69.
Clearly, therefore, the child would not be at an unacceptable risk
once the evidence was available in Australia and before the Family
Court. The court’s only concern was that intermediate period
pending the investigation. There is no evidence of any disclosure
in Australia, all relevant evidence relating to the disclosure
emanated in New Zealand and remained in New Zealand. In the case
before the court that initial concern was met by the making of
consent orders in the Australian Family Court in these terms.
“BEFORE THE HONOURABLE JUSTICE FINN
The 17th day of June 1994.
UPON APPLICATION MADE TO THE COURT THIS DAY AND UPON HEARING
Mr Brewster on behaH of the applicant father and Mr Burnett on
behalf of the respondent mother,
IT IS ORDERED:
1. That by consent orders be made in terms of the attached copy
of minutes of consent orders which were before the Court
this day and which bear the signature of the father and the
facsimile signature of the mother and to which minutes are
also attached copies of affdavits from each party (as
provided for under Rule 9A of the Family Law Rules).
THE COURT NOTES IN CONNECTION WITH THE ORDERS MADE BY
CONSENT REFERRED TO IN ORDER 1 OF THESE OP~[DERS:
That it is the understanding of the legal representatives
for the parties:
(a) that the reference to “Community Services of
Australia” in order 2 of the minutes of consent
orders, is a reference to the various departments in
each state and territory of Australia responsible for
child weHare matters; and
(b) That arrangements have been made with the Director of
Court Counselling of pthe Canberra Registry of this
Court for the conduct of the counselling referred to
in the minutes of consent orders.
2. That each party have liberty, through his or her solicitor,
to apply to the Canberra Registry of this Court for a
further listing of this matter on short notice.”
The orders sought are as follows:
1. That without prejudice to the position of either
party in respect for their competing applications for
custody of the child, Angela Jean Madden, (born 3
April, 1989), the child remain in the care of Llonka
Hofmann until further order of the Family Court of
Australia.
2. Without any admission of liability to do so, until
further order, that the father, Paul Madden should
not have access to the chiid Angela Jean Madden as or
by way of supervised access or by telephone or other
contact unless Community Services of Australia, the
Family Court Counselling Service or the Family Court
of Australia has sanctioned or indicated the same.
3. That llonka Hofmann, the Respondent Mother, be
ordered to appear with Angela Madden at a Family
Court Counselling session in Sydney within one week
of their return to Australia from New Zealand.
4. That all supervised access sessions and any further
counselling sessions be reportable and received in
evidence pursuant to Section 62(A) of the Australian
Famiiy Law Act (1975).”
It is an indication of the ciose relationship that the two family
courts enjoy that there can be, within a period of eight days,
consent orders made in the Australian Court to guarantee the
protection of a child pending investigation of the matter.
It follows, as in the end counsel for Miss Hofmann and Miss
Hofmann herself accepted, that the provision of such safeguards
overcame any potential concerns arising from the ailegations and
therefore Angela should be returned to Australia in the custody of
her mother.
Two subsidiary issues arose. Firstly, the Act in terms of s12 of
the Guardianship Amendment Act requires the return of the child
forthwith. In this case Angela had disclosed sexual abuse and was
in therapy. The therapist considered the return to be to Angela’s
disadvantage if she was not able to conclude therapy. The therapy
was likely to take up to three to six months and at the very least
needed time to disengage.
In this case some time was available to discontinue, though not
sufficient to avoid the need for further therapy in Australia with
the accompanying difficulties resulting from the introduction for
a stranger to her. It might be said that Angela, who is a very
mature and bright child for her age, may cope better than most,
but such state of affairs highlights the displacement of the
paramouncy principle under s23 of the Guardianship Act by the
specific wording of s12 and s13 with its emphasis of forum.
In the end the return without completion of therapy is to Angela’s
disadvantage but not such as to invoke the preconditions set out
in s13 to require the court to refuse the return of the child.
The second issue that arises relates to the availability of the
video tape disclosure interview to the Australian Family Court if
it is requested. The conducting of inteNiews and the availability
of the tape as evidence is subject to s23(i) of the Evidence Act
and The Evidence Video Taping of Child Complaints Regulations
1990. The Regulations provide a code for the use, availability,
and storage of tapes.
For the purpose of this case it suffices to say, pursuant to
Regulation 11(b) of the Evidence Video Taping of Child Complaints
Reguiations 1990, that the Family Court can require a copy of the
video tape for proceedings inter alia under the Guardianship Act.
The Regulations go on to provide (Regulation 14) that subject to
the availability of copy tapes to the Family Court all tapes shall
be held by the police until destruction being the date of final
determination of any criminal case or failing a criminal case,
seven years.
Any copy made available to the Family Court is obliged to be held
by the Family Court on the same terms.
If the Regulations apply, then there appears to be no right of
access to the tape by the Australian courts should they seek such
access.
Regulation 3 of the Regulations governs the application of the
Regulations. It states:
“These Regulations apply where, in any case described in
section 23(c) of the Evidence Act 1908 or section 185(C)(A)
of the Summary Proceedings 1957 the complainant’s evidence
is to be admitted in the form of a video tape.
Section 23(c) of the Evidence Act relates to child
complainants in offences against persons charged with
offences under the provisions of ss128-142 of the Crimes Act
or any other offence against a person of a sexual nature or
being a party to the commission of such an offence or
conspiring with any person to commit such an offence.”
Section 185(C)(A) of the Summary Proceedings Act details the
manner in which child complainants may give evidence by way of
video tape.
The purpose of the interview of Angela in this case was not to
elucidate information upon which criminal proceedings might be
based. There is no evidence of a crime having been committed
within the New Zealand jurisdiction. The purpose of the disclosure
interview was to simply ascertain whether or not there was
evidence of abuse which might be used in family proceedings or to
assist Angela in therapy.
That being the case, the Child Complaint Regulations are not
applicable and therefore should the Family Court of Australia find
it to be of assistance to have a copy of the video tape disclosure
interview then subject to an application being made I see no
reason to prevent the tape being made available for use.
Section 28 of the Guardianship Act gives the court a discretion as
to the costs resulting for the return of the child. I do not
consider that this is an appropriate case for the court to order
contribution by the mother for costs of return of Angela or the
costs of counsel appointed to represent the central authority.
The formal orders I make are:
1 That Angela is to be returned to Australia not later than 1
July 1994.
2 That the child is to be escorted to Australia by her mother.
3 That the interim orders made requiring the surrender of all
travel documents, passports and airline tickets for Angela
Jean Madden is cancelled.
4 I grant leave to the applicant and respondent to bring the
matter back on 24 hours notice should any further orders be
required to implement this decision.
J J D Strettell
Family Court Judge