ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD.	
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV 2018-485-681
[2018] NZHC 2902	

BETWEEN	C O L
Appellant	
AND	L R R
Respondent	

Hearing:	31 October 2018	
Counsel:	J C Gwilliam for Appellant D D Vincent for Respondent	
Judgment:	8 November 2018	

JUDGMENT OF SIMON FRANCE J

[1]	This is an appeal from a decision of the Family Court declining to order the return to Australia of a child taken by its mother in breach of the father’s parenting rights.1 The initial application for return was brought by the Secretary for Justice as the New Zealand Central Authority under The Hague Convention. However, the carriage of the appeal has rested with the father.

Legal context

[2]	This is what is known as a Hague Convention case. That is a Convention on Civil Aspects of International Child Abduction.2 Its twin objectives are:3

1	L v R [2018] NZFC 4040.
2	Convention on the Civil Aspects of International Child Abduction 1343 UNTS 98 (opened for signature 25 October 1980, entered into force 1 December 1983).
3	Article 1; and Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289 at [35].

C O L v L R R [2018] NZHC 2902 [8 November 2018]

(a)	to secure the prompt return of children wrongfully removed to or retained in any contracting state; and

(b)	to ensure the rights of custody and access under the law of one contracting state are effectively respected in the other contracting state.

[3]	The structure of the legislation giving effect to this (Care of Children Act 2004
– “the Act”) is to identify the requirements necessary to engage The Hague Convention principles (s 105 of the Act) and then to set out the circumstances in which, the Convention being engaged, it is open to a Court nevertheless to not order return of the child (s 106). Of these exceptions, Tipping J in Secretary for Justice v HJ observed:4
[40]	This said, all the exceptions must be approached with an understanding of their shared context, within a Convention that has the general purpose of deterring child abductions. That is achieved by ensuring prompt return in cases where no ground to refuse return is established. When such a ground is established the Convention envisages an inquiry into whether its deterrent purpose should prevail over the interests of the particular child or children.

[41]	The core working provisions of the Convention illustrate these matters. The States parties wished to provide a mechanism by means of which children wrongly removed from one country to another were ordinarily to be subject to prompt return. As we have already indicated, the purpose of that return is to enable the relevant authority in the country of habitual residence, rather than the authority in the country to which the child has been removed, to decide what is best for the child’s future. The States parties recognised, however, that in some circumstances it might not be appropriate to order return. The proposition that prompt return was generally the best course to take was therefore made subject to the exceptions described above. The Convention nevertheless provides for a general discretion to order return, even when an exception is established. This requires the judicial authority in the requested State to balance against the interests of the children any feature in the case which might require those interests to yield to the deterrent purpose and other policies of the Convention.

[4]	It was common ground here that The Hague Convention was engaged. This means that:

4	HJ, above n 3, at [40]–[41] (footnote omitted).

(a)	the child, H, (presently aged three) is present in New Zealand;

(b)	H was taken from Australia by his mother in breach of his father’s rights of custody;

(c)	the father was exercising his rights of custody at the time of the removal; and

(d)	H was habitually resident in Australia prior to his removal.

Facts

[5]	The mother (M) is a New Zealander who has lived in Australia for many years. The couple met in 2013, lived together for a while and then M became pregnant with
H. Eventually the couple moved from Darwin to Hobart where the father (F) has family.

[6]	The relationship has seemingly always been fraught. In the early days M was working in a casino and also as an escort. F, she says, introduced her to drugs. Methamphetamine became a part of their lives. It seems there have always been arguments. Each accuses the other of physical violence. Both have a conviction for such violence. M has an alcohol problem.

[7]	At the time M came to New Zealand with the child in 2017, F had been charged with a further incident of violence. The alleged incident also amounted to a breach of a Family Violence Order. M left the home while F was on custodial remand (since bailed) and went to the Hobart Women’s Shelter.

[8]	She sought help to establish herself and H on their own, but was unsuccessful in obtaining the financial state support she needed. This seemingly prompted her travel to New Zealand. While in New Zealand she has obtained a protection order and an interim parenting order. The latter is the subject of Family Court proceedings to which F is a party and concerning which he has received a grant of aid.

Judgment under appeal

[9]	Section 106(1) of the Act provides:5

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.

M relied on ss 106(1)(c)(i) and (ii).

5	Emphasis added.

[10]	The Family Court first assessed whether there was a grave risk that return would expose the child to physical or psychological harm. The parties had each filed affidavits attesting to the other’s failings and propensity to violence and alcohol. The hearing is determined on the written evidence, but the Court was assisted by reports from Australia. First, there was an extensive file from Tasmania Child Protection Service. Second, the Court also had a file prepared by the Hobart Women’s Shelter. There was also a report from Wellington Women’s Refuge.

[11]	The Tasmanian Child Protection Service detailed a history of callouts and alleged psychological and physical abuse. It is an extensive file and the Service was plainly concerned about the wellbeing of H. A safety plan was in place but steps had not been taken to remove H from the environment.

[12]	The Judge generally preferred the evidence of M but considered he could not resolve the conflicts. His Honour considered it clear that there had been violence which had escalated by 2017. The relationship was volatile and dysfunctional. However, the Court was not satisfied it had been shown there was a grave risk of psychological or physical harm to H if his return to Australia were ordered. It was noted there was no current assessment of H’s wellbeing, including his psychological health. While some risk might be present, the evidence did not point to a grave risk.

[13]	Turning to whether return would place H in an intolerable situation, the focus was very much on the mother’s situation and the impact of her having to return to Australia with the child. Recognising the statutory test requires an intolerable situation exist for the child, the link is provided by an assumption M will be the primary caregiver, and the impact on the child if the mother cannot provide or cope.

[14]	The questions posed by the Court were:6

(a)	What are the implications for [H] if the mother’s ability to parent him is compromised because of psychological issues affecting her wellbeing and her lack of entitlement to benefits is she does return with [H] to Australia?

(b)	What benefits are available to the mother in New Zealand and in Australia to support her and [H]?

6	L, above n 1, at [90].

[15]	The Court considered M was highly vulnerable. She has a history of using alcohol and methamphetamine and a history of depression which is worsened by the volatile relationship which has involved psychological and physical violence over a number of years. She has an on-going fear of the father and no family support in Tasmania (assuming that is where she returned to).

[16]	The next issue addressed was her entitlement to assistance. This looked at two aspects – assistance with living, and legal aid assistance for family court proceedings in Australia. Concerning living assistance, M’s difficulty is she is not an Australian citizen. H, however, is entitled to a benefit if the financial circumstances support it. M had unsuccessfully applied for this while with the Hobart Women’s Shelter. The rejection was apparently based, however, on the need for fuller information. The process of providing that was effectively stopped by M heading to New Zealand.

[17]	Concerning legal aid, M had unsuccessfully sought aid for a relocation application. Subsequent information provided to the Family Court indicates that standing alone (which seemingly was the context of the application), relocation is assessed as low priority. That may be different, however, if it is part of, or appended to, a fuller custody and guardianship hearing.

[18]	The Court concluded there was uncertainty regarding benefits entitlement given that H’s entitlement arose in an area of discretion. The situation regarding legal aid was also “problematic”, and the Court was not persuaded “it can be assumed” the mother will qualify for legal aid.7

[19]	The Court concluded:

[117]	In this case, I find on the evidence the psychological wellbeing of the mother has been adversely affected as a consequence of the abusive relationship with the father. The evidence indicated the mother attempted suicide on two occasions in Australia. Although the mother referred to these attempts as being “half-hearted” the suicide attempts reflected the depth of distress the mother was experiencing. As noted in the report from the Refuge, the mother was displaying signs of post-traumatic stress disorder. The concerns about the mother’s wellbeing were recorded over a number of years in the documentation provided by TCPS [Tasmanian Child Protection Services].

7	L, above n 1, at [114] and [115].

[118]	When I weigh the totality of the factors relating to the mother’s vulnerability I seriously doubt her ability to cope and provide appropriate care for [H] if an order was made for the return of [H] to Australia. These concerns would be compounded, if it transpired the mother was unable to get legal aid for the relocation proceedings that would follow and even more so if difficulties arose over her entitlement to benefits. In my view assumptions about entitlement to legal aid and benefits cannot be justified – there is too much uncertainty.

[119]	In Armstrong v Evans at [61] Judge Doogue made the following observation:

… I am satisfied the legal system could regulate the contact between the parties and the parties and their child. The difference here is that the risk I am concerned about is not capable of being legislated against. Court orders do not regulate against a person’s inability to cope and potential suicidality. Mental Health systems and the regulation of mental illness by compulsory order similarly cannot eliminate such risk. They may relieve it but no health professional would make assurances that it could be eliminated. …

I respectfully endorse this observation. I find these considerations apply in this case.

[120]	Given the concerns I have set out relating to the mother’s vulnerability and issues associated with her mental health and her entitlement to benefits and legal aid in Australia, it is inevitable, in my view, this would place [H] in an intolerable situation if it was ordered he is to return to Australia.

Competing submissions

[20]	The appellant, F, submitted the evidence was insufficient to discharge the onus on the respondent. The evidence concerning the financial situation was speculative, and too much weight was placed on the mother’s circumstances rather than the child. It is noted that there is no professional assessment of M and her mental state.

[21]	The respondent, M, contended the Family Court was correct in its assessment. The focus on the mother was correct so long as it then shifted to the consequent impact on the child. This was a classic abuse situation, and other Family Court cases had similarly recognised the relevance of the long-term detriment to the child’s wellbeing. It is submitted that with proceedings under the Act already in motion in New Zealand and F having legal aid to participate in those, H’s interests favour having the care arrangements resolved first, guided by a psychological report.

[22]	Beyond this general summary, the specific submissions are addressed in the reasoning. I note the onus is on M to establish the defence, but is on F to show the Family Court erred. Respect is appropriately shown to the evaluations of a specialist Court, whilst at the same time noting it is a general appeal and there was no oral evidence.8 The appellate court is equally well placed to assess the evidence.

Decision

[23]	As a starting point, I suggest some focus is needed on the situation that is likely to exist upon return and which it is said will be intolerable. If it is ordered that the child be returned to his home country, what will the situation be in the short to medium term?

[24]	I consider it important to recognise the home country here being talked about is Australia which has a Family Court system and structure similar to ours and which is governed by the same principles. It is a short distance away and its systems afford no basis for any hesitation by a New Zealand court about ordering return.

[25]	Next, it seems clear that if M returns with H, she and F will not be living together. The core situation which lies behind the bulk of the previous misconduct by both parties will not exist. There is no history of how matters will work out once they are separate.

[26]	Next, the concern over M’s medium-term ability to care financially for H has proceeded on certain assumptions concerning which caution is required. First, the judgment assumes that in Australia M will be the primary caregiver. However, F presently has care of three children from another relationship. All signs point to him wanting at least equal custody of H. His interest is demonstrated both by the appeal and the steps he has taken to be a party in the New Zealand Family Court proceedings. It should not be assumed M will be the sole caregiver, and any analysis of an intolerable situation must have regard to the different care options.

8	Mikova v Tova [2016] NZHC 1983 at [48], citing Austin, Nichols & Co Inc v Stichting Lodestar
[2007] NZSC 103, [2008] 2 NZLR 141.

[27]	The second assumption, a financial one, is that if M were awarded custody, F will not be required to contribute funds. All the financial analysis in the Court below focused only on state support without having regard to other funds. Finally, it is common ground that if M were involved in Family Court proceedings in Australia, there would be New Zealand financial assistance available to her. Mr Vincent submits this should be put to one side because it is not clear there will be Australian proceedings. Unaided, M cannot initiate them and it is not clear that F would do so.  I cannot accept this latter point. As noted F has pursued the issues in New Zealand. Presently M has assumed sole custody (now protected in New Zealand by interim orders) and F plainly seeks a role in H’s life. It is unconceivable he would allow M to have custody and he have no access without initiating Family Court proceedings seeking to alter that situation. Those proceedings will in turn trigger M’s New Zealand benefit entitlement.

[28]	Turning from M’s financial situation to likely litigation, the legal aid concern is in my view over weighted. First, it is not clear what the aid situation would be. M’s only application was made for assistance with a relocation application alone. The last communication from Tasmanian Legal Aid, much subsequent to M’s unsuccessful application and responding to a request for information from the Family Court, is that “it looks like” a grant of aid would be given. Second, the legal aid situation is a factor but cannot in reality much influence the assessment of whether the child will face an intolerable situation.

[29]	It is also relevant that one can here reasonably expect the Australian family courts to be seized of the matter in a relatively short-time. It is clear the situation needs regularising and assessments made as to the long-time care of H.

[30]	Overall, therefore, I assess the factual context if H’s return was ordered as being:

(a)	M and F will live apart, with Australian protection orders already in place;

(b)	M will probably, de facto if nothing else, have initial care of H; and

(c)	the Australian Family Court will be seized of the matter in a relatively short-time frame. If that occurs, M will likely receive New Zealand sourced assistance.

Any assessment of intolerable situation needs to have this context in mind.

[31]	Without minimising the stresses on M, and recognising her perception of the situation and the risk F presents, I consider the circumstances fall well short of establishing an intolerable situation for H. Care is needed before too readily transferring M’s unhappiness and even desperation over the situation to a conclusion that the child faces an intolerable situation. Although that may seem harsh, it is the Convention and the Act’s focus as it seeks to deter child abductions.

[32]	Reliance was placed by the respondent on a decision of Judge Doogue in Armstrong v Evans where it was held there was a real risk of the mother committing suicide if ordered to return.9 It can be noted the Court there had the benefit of a psychological assessment of the mother, and oral evidence on the point. It will not be often that level of surety over a parent’s future acts can be reached.

[33]	The evidence does not go that far here. The Court, correctly in my view, found there was not a grave risk of psychological and physical harm to H if his return were ordered. The mother will no doubt be distressed but it will be a relatively short period before the Family Court is asked to address the situation. That can include, if M wishes, a case for relocation to New Zealand where all the factors that are raised on her behalf in this proceeding can be advanced.

[34]	While understanding the concern about M, it is important to keep in mind the context. M has unlawfully removed H from Australia. There is a strong international convention to which New Zealand is a signatory setting up barriers to such conduct, with the primary remedy being return to the country of domicile. The issue is whether that return will put the child in an intolerable situation, with the onus being on M. It is, as the Family Court said, a defence that is not easy to establish.10

9	Armstrong v Evans (2000) 19 FRNZ 609 (DC), as cited by the Family Court: see L, above n 1, at [119]..
10	L, above n 1, at [25].

[35]	As it stands here:

(a)	if M cannot herself tolerate the situation, there is no evidence to say F cannot care for the child. The primary risks are to her, not H. That is not to ignore disputed claims by M about F’s actions regarding H. However, in that regard the next point is relevant;

(b)	despite intensive intervention and supervision, Tasmanian Child Protection Services did not see sufficient risk to H when the couple were living together to require his removal. The risks to H now the couple will be living apart must be correspondingly reduced;

(c)	M will not be required to live with F and there is a non-violence order applicable (recognising of course the limits of that); and

(d)	H’s long-term situation is likely to be before the Family Court in Australia in a relatively short timeframe.

[36]	In these circumstances, I consider the Family Court erred in assessing the evidence as discharging M’s onus to establish that there is a grave risk H would be in an intolerable situation if having to return to Australia. The appeal is therefore allowed.

[37]	I assume the Central Authority will assume responsibility for giving effect to this judgment. Leave is reserved to seek the imposition of conditions or other steps as required. M is legally aided so no costs order is made.

Simon France J