1. The case concerned an application by a father to return an 11 year old child to Australia. It was not disputed that the grounds for an order to return the child had been made out, the issue was whether the mother had grounds to resist the order under section 106 of the Care of Children Act 2004.
  2. In the Family Court Judge Smith held that a defence to a removal order was made out in that the child objected to being returned to Australia and he had attained an age and degree of maturity at which it was appropriate to give weight to the child’s views.
  3. The Judge acknowledged that the potential psychological harm to the child would include the prospect of his views being disregarded if, contrary to his clear preference to remain in New Zealand, he was now required by the Court to return to Australia. An order for return would not be restoring the status quo as living permanently with his father was not a situation he had experienced before. Given all those circumstances, the Judge considered he should exercise his discretion to refuse an order for return.

Background

  1. The child had been in the primary care of his mother at birth.
  2. The mother claimed the father did not want the child and had physically abused her during the pregnancy in an attempt to cause her to lose the child, which the father denied. The mother had obtained a protection order.
  3. The parties accounts of the father’s involvement in the child’s life varied.
  4. The mother had a subsequent abusive relationship with another partner against whom she also obtained a protection order. Her evidence was that she was advised by Victim Assist (a state agency in Queensland) to leave Australia as a practical means of bringing an end to the domestic violence and she was given financial assistance to help her move.
  5. In November 2018 the mother left with the child and his two younger half siblings.
  6. Lawyer for the child and the clinical psychologist involved in the case reported positively on the child’s new environment in New Zealand.

Relevant legal principles

  1. An application can be made to return a child under section 105 of the Care of Children Act 2004 where:

(a)    a child is present in New Zealand; and

(b)     that 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 other Contracting State immediately before the removal.

  1. Under section 106 the Court can refuse to make an order for return of the child if satisfied:

(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 (this reflects article 12 of the United Nations Convention on the Rights of the Child (UNCROC)); 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.

  1. Also relevant is the Hague Convention, the underlying premise of which is that disputes over care and control of children should be determined in the courts of the jurisdiction that comprise the child’s habitual residence. Removal of children from their country of habitual residence without lawful permission or consent of all guardians is treated as abduction, and signatories to the Hague Convention commit to requiring the prompt return of children that have been removed in such circumstances.
  2. In cases where one or more of the exceptions in section 106 are made out, the Court must still apply a residual discretion as to whether, in the circumstances of the case, it is appropriate to refuse to make an order for return of the child. The case law dictates that refusing an order for return should only occur in “exceptional” cases.

The appeal

  1. The submissions for the father centered around concern about the possible precedential impact of recognising an exception under s 106 in circumstances that might be seen to lower the barrier for doing so and therefore risked eroding the commitment to enforcement of the Hague Convention. The father argued the views of the child were insufficient to constituted an objection for the purposes of section 106 citing authorities that required a distinction to be drawn between a clear preference and an objection.
  2. However, the High Court considered the child could not have expressed his objection to returning to Australia more clearly.
  3. The father also argued the weight placed on the child’s views out to be discounted because of the influence on his views by his mother. There was evidence of the child describing matters which he could not have observed and which seemed to reflect adult issues someone had shared with him.
  4. However, the High Court found that it was entirely predictable that the child would identify with the views and concerns of his mother who had been his primary caregiver his entire life.
  5. The Court concluded the child was a mature and intelligent 11 year old who would have understood the purposes for which he was being interviewed and whether consciously or unconsciously emphasised views likely to persuade the interviewers of the importance of his wish to be allowed to remain in New Zealand.
  6. The High Court was not persuaded the Judged erred in attributing the weight he did to the child’s views.
  7. The final argument of the father was to criticize the mother’s assertion that if the child was ordered to return to Australia, she and his half sisters would not relocate to be with him. It was argued this was a hollow threat that effected the child’s views.
  8. However the Court was not satisfied that there was any evidence to show that the mother’s assertion was not genuine. The evidence showed the authorities in Australia had given the mother $14,000 in financial assistance to relocate and the family was happier in New Zealand away from the pattern of serious and on-going domestic violence that had existed in Australia.
  9. In any event, if the child was required to be returned to Australia and the mother and his sisters accompanied him, the mother would likely avoid Queensland and move far away within Australia.
  10. Overall the High Court was satisfied the child had expressed a clear objection and that he had a degree of maturity which made it appropriate to take that objection into account. Despite any reduction in the weight that can be given to that objection to recognise the risk due to the mother’s influence (which the Court said had been overstated), the Court was still left with a genuine objection, expressed in unequivocal terms and for which there was a rational explanation. The ground for refusing an order for return was therefore made out.
  11. The Court then considered the residual discretion.
  12. The father argued the Family Court had overlooked the deterrent purpose, policies and objectives of the Hague Convention which the father argued was particularly important when the mother had contrived to subvert the purposes of the Hague Convention by removing the child to New Zealand in a carefully planned abduction
  13. Numerous criticisms of the mother were made including for her not having sought the assistance from the Family Court in Australia, and the lack of consultation or co-operation.
  14. The High Court was not convinced concluding:

[52] Making every allowance for the influences on the child in forming the views he expressed to those interviewing him, there remain logical and rational reasons for those views. It is equally credible that they would be genuinely important to the child, justifying him expressing them in strong terms.

[53] It can hardly be said that the mother contrived the circumstances of an on-going pattern of serious domestic violence to an extent that a government agency encouraged and financially facilitated her removal to New Zealand. The father cannot re-write the history of an apparently close and loving connection between the mother as primary caregiver and the child for the whole of his life. The value of that environment to the child is bolstered by the presence of his two younger half sisters.

  1. In all of the circumstances of the case the High Court could not accept that the Hague Convention had been subverted by refusing an order for return. In reaching that decision the Court noted requiring the child to return would be perceived by the child as a substantial injustice.
  2. The mother’s conduct was not sufficiently egregious to overrule the child’s clear preference.
  3. The appeal was dismissed.