Director General, Department of Children, Youth Justice and Multicultural Affairs & Montgomery - [2023] FedCFamC1F 44

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Director General, Department of Children, Youth Justice and Multicultural Affairs & Montgomery [2023] FedCFamC1F 44

File number: BRC 14010 of 2022

Judgment of: CAREW J

Date of judgment: 10 February 2023

Catchwords: FAMILY LAW - CHILD ABDUCTION – Hague Convention – Where the applicant alleges that three children were wrongfully removed or retained by the mother in Australia and seeks their return to New Zealand – Where the mother resists the making of a return order on three grounds, namely, that the father was not actually exercising ‘rights of custody’, there is a grave risk that the return of the children under the Convention would expose them to physical or psychological harm or otherwise place the children in an intolerable situation – Where return order made.

Legislation:
Family Law Act 1975 (Cth)

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Care of Children Act 2004 (NZ)

Convention on the Civil Aspects of International Child Abduction [1987] ATS 2

Cases cited:
De L Director-General, Department of Community Services (NSW) (1996) 187 CLR 640

De Lewinski v Department of Community Services (NSW) (1997) 21 FamLR 413

DP v Commonwealth Central Authority (2001) 206 CLR 401

MW v Director-General, Department of Community Services (2008) 244 ALR 205

Re C (A Minor) (Abduction) [1989] 2 All ER 465

Number of paragraphs: 124

Date of hearing: 3 February 2023

Place: Brisbane

Counsel for the Applicant: Mr J. Selfridge

Solicitor for the Applicant: McInnes Wilson Lawyers

For the Respondent: Litigant in person
ORDER

BRC 14010 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
DIRECTOR GENERAL, DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS

Applicant

AND:
MS MONTGOMERY

Respondent

order made by:

CAREW J

DATE OF ORDER:

10 february 2023

THE COURT ORDERS THAT:
1.All existing Orders are discharged.
2.The children, X born 2008, Y born 2012, and Z born 2014 (“the children”) are to be returned to New Zealand.
3.For the purposes of giving effect to this Order:
~~(a)~~The children are to leave the Commonwealth of Australia within ten (10) days of the date of this Order and for that purpose the children will travel on a flight with Mr C, with the respondent mother responsible for the cost of Mr C’s flights, and the requesting applicant father responsible for cost of the flights for the children.
(b)Pending the children returning to New Zealand, the respondent mother, Ms Montgomery born 1980, continues to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the children from the Commonwealth of Australia.
(c)Pending the children returning to New Zealand, the respondent mother, Ms Montgomery born 1980 is restrained and an injunction is hereby issued restraining her from changing the children’s usual day to day residence from the premises where she and the children are currently residing namely, B Street, Suburb D in the State of Queensland.
(d)Subject to paragraph 3(e) of this Order, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police are to retain the names of the respondent mother, Ms Montgomery born 1980 and the children, X born 2008, Y born 2012, and Z born 2014, on the Family Law Watch list at all international departure points in Australia.
(e)The names of the children, X born 2008, Y born 2012, and Z born 2014, and of the Respondent mother, Ms Montgomery born 1980 are to be removed from the Family Law Watch list by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Children, Youth Justice and Multicultural Affairs advising of the travel arrangements made for the children to return to New Zealand from 12.00am on the date nominated for the said travel in the letter.
(f)The Marshal of the Federal Circuit and Family Court of Australia (Division 1) and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are directed to take all necessary steps to give effect to this Order.
(g)Ms E, manager of court services, Department of Children, Youth Justice and Multicultural Affairs or her nominee is at liberty to release all current passports for the children to Mr C or such other person as may be necessary to facilitate the children’s return to New Zealand, and to release the Respondent mother’s passport to her or her nominee upon request.
(h)Liberty to apply is granted to the applicant to seek any further orders necessary to allow her or officers of the Department of Children, Youth Justice and Multicultural Affairs to make such arrangements as are necessary to facilitate and ensure the return of the children in accordance with this Order and pursuant to the Central Authority’s obligation under regulation 20 of the Family Law (Children Abduction Convention) Regulations 1986.

4.The applicant is to forthwith provide a copy of this Order and the Reasons for Judgment to the following authorities in New Zealand with a request that they give consideration to taking any steps necessary to ensure the safety of the children upon their return to New Zealand:
(a)New Zealand Police; and
(b)Oranga Tamariki (formerly Child, Youth and Family Services New Zealand).

5.All other applications are dismissed.

NOTATION
A.The applicant, the requesting applicant father and the respondent mother are aware that upon the children returning to New Zealand they will be delivered to the home of the maternal grandfather, Mr F of Suburb G in City H.
B.The applicant and respondent mother consent to Notation A.
C.The applicant informed the Court that the father consents to the delivery of the children to the home of the maternal grandfather.
D.Mr C was present in Court on 3 February 2023 and confirmed he is agreeable to travelling with the children to implement their return to New Zealand.
E.The mother agrees to pay the costs of Mr C’s flights.
F.The applicant informed the Court that the father agrees to pay the costs of the children’s flights.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:

As at 6 October 2022, X aged 14 years, Y aged 9 years (now 10 years) and Z aged 8 years (“the children”), were habitually resident in New Zealand. X travelled to Australia in September 2022 with the consent of her parents, Ms Montgomery (“the mother”) and Mr J (“the father”). It was intended to be a temporary stay with members of the maternal family.
In October 2022, the mother travelled to Australia with Y and Z, and notified the father by email (on that same day) that she and the children had relocated to Australia and would not be returning. The mother’s husband, Mr K, (whom she married in 2020) and his daughter, L, aged 14, arrived in Australia shortly thereafter. L has since returned to New Zealand.
The father commenced proceedings for the children’s return to New Zealand pursuant to the Convention on the Civil Aspects of International Child Abduction (“the Convention”)[1] by signing an application to the Central Authority in New Zealand on 19 October 2022. An application was filed in Australia by the Department of Children, Youth Justice and Multicultural Affairs (“the applicant”), who is a responsible Central Authority in Australia, on 8 November 2022.
[1] [1987] ATS 2.
The mother resists the making of a return order for the children to New Zealand and informed the Court that she will not return with them if such an order is made, whether such an order relates to all three children or just the two younger children.
The mother resists the return order on three bases:
(a)The father was not actually exercising ‘rights of custody’;
(b)If they return to New Zealand there is a grave risk the children will be exposed to physical or psychological harm or they will be placed in an intolerable situation; and
(c)The children object to returning to New Zealand.
On 15 November 2022, an order was made for the preparation of a report by a family consultant pursuant to reg 26 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), in order to interview the children and assess any objections they may have to returning to New Zealand. The report is dated 24 January 2023 and is Exhibit 2 in the proceedings.
The father was present at the hearing via video link from New Zealand.
Before considering the application of the Convention to the particular facts of this case, it may be of assistance to explain the nature of the proceedings and the Convention more generally.
WHAT IS THE NATURE OF THE PROCEEDINGS?
The proceedings concern an application for a return order pursuant to the Regulations. The Regulations provide the legislative framework pursuant to which Australia meets its obligations as a contracting state to the Convention.
This is not a hearing on the merits of a ‘custody or access’ case (to use the terminology in the Convention), but a hearing to determine the appropriate response to Australia’s obligations under the Convention. Unlike parenting proceedings, the best interests of the children are not the paramount consideration.[2]
[2] De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640 at 658.
If the children have been wrongfully removed or retained, then a return order must be made unless the parent resisting the return order establishes an exception within reg 16(3) of the Regulations and I exercise my discretion not to make a return order (reg 16(5)).
THE CONVENTION
The purpose of the Convention is to ensure the prompt return of children who have been wrongfully removed from or retained in a convention country and to enable any dispute relating to the parenting of the children to be determined by the children’s country of habitual residence immediately prior to the wrongful removal or retention.[3]
[3] Ibid at 648–649.
The Regulations are intended to be construed:[4]
(a)Having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention;
(b)Recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and
(c)Recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.
[4] Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) reg 1A(2).
If an application for a return order is made within one year[5] after the removal or retention of a child, and the removal or retention was wrongful within the meaning of the Regulations, the Court must, subject to certain exceptions, return the child to the convention country which was the child’s habitual residence immediately before the wrongful removal or retention (reg 16(1)). Even where one of the exceptions under reg 16(3) is established, the Court retains a residual discretion to nevertheless make a return order (reg 16(5)).
[5] If the application is filed more than one year after the day on which the child was first removed to or retained in Australia the return order will still be made if certain conditions are established.
The responsible Central Authority (defined in reg 2) or Article 3 applicant (defined in reg 2) must satisfy the Court that the child’s removal to or retention in Australia was wrongful (reg 16(1)(c)). The removal or retention will be wrongful if the Court is satisfied of the following:[6]
(a)The child was under 16 years of age; and
(b)The child habitually resided in a convention country immediately before their removal to, or retention in, Australia; and
(c)The person, institution, or other body 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
(d)The child’s removal to or retention in Australia is in breach of those rights of custody; and
(e)At the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights had the child not been removed or retained.
[6] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1A).
The person opposing the return bears the onus of establishing one of the exceptions set out in reg 16(3) of the Regulations,[7] which are as follows:
[7] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3); DP v Commonwealth Central Authority (2001) 206 CLR 401, 408 [9], 416–17 [39]–[41].
(a)the person, institution or other body seeking the child's return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)each of the following applies:
(i)the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or ordinary wishes;
(iii)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
(d)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.
Recent amendments to the Regulations give further emphasis to circumstances where a person who has abducted a child alleges that the return of a child under the Convention would result in the child being subject to, or exposed to, family violence.[8] The amendments do not apply to this matter as the application was filed prior to the commencement date of the amendments.[9]
[8] Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022 (Cth) which commenced operation on 10 December 2022.
[9] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 33.
In view of the limited purpose of the enquiry in applications brought pursuant to the Convention, cross-examination of witnesses is not generally necessary however, there will inevitably be cases where fulfilling the requirement of reg 15(2) for a “proper consideration of each matter” requires the granting of leave to cross-examine a witness. As the High Court of Australia observed in MW v Director-General, Department of Community Services:[10]
[10] (2008) 244 ALR 205 at 217–218 [46]–[50].
46. Cross-examination in interlocutory applications generally is not to be encouraged. But an application for a return order under reg 16 of the Regulations is a special type of proceeding. It is apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country. To emphasise these matters is not to encourage the amplitude of the evidence to which the House of Lords referred in Re M (Children) (Abduction: Rights of Custody). The oral evidence in that Convention application was heard over two days.
47. Regulation 15(2) obliged the Family Court, "so far as practicable", to give to the application by the Authority "such priority" as would "ensure that [it was] dealt with as quickly as a proper consideration of each matter relating to the application allows". If within 42 days of its filing the application had not been determined, the Authority would have been empowered by reg 15(4) to seek from the Registrar a written statement of the reasons for the absence of a determination. Regulation 15 reflects the exhortation in Art 11 of the Convention that "judicial or administrative authorities" act "expeditiously" in these matters and the reference in Art 7 to "the prompt return of children".
48. The judicial or administrative authorities which decide return applications in some Convention countries may not, under their legal systems, have the obligations to provide the measure of procedural fairness and to give reasons which generally apply in common law systems and which were observed here by the Family Court. Thus, in this country, the requirement of promptitude can be an onerous one.
49. Nevertheless, prompt decision-making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another. The references to "summary procedure" and to the dealing with applications on affidavit evidence and "in a summary manner" by the Full Court in In the Marriage of Gazi are apt to mislead. This is particularly true of the statement in that case:
The primary purpose of the Convention, the relevant legislation and regulations is to provide a summary procedure for the resolution of the proceedings and, where appropriate, a speedy return to the country of their habitual residence of children who are wrongly removed or retained in another country in breach of rights of custody or access [sic] (see Convention, Arts 7 and 11, Family Law (Child Abduction Convention) Regulations, reg 19(1)). Accordingly, whilst there may be cases in which it is appropriate to allow cross-examination of deponents of affidavits, such cases would be rare. The majority of proceedings for the return of children, pursuant to the Convention, should be dealt with in a summary manner and cross-examination of deponents of affidavits would not be appropriate.
50. The danger in reading such remarks too literally (and without regard to the circumstances of each particular case) is apparent in situations such as that considered in the United States by the Court of Appeals for the Third Circuit in Re Application of Adan. An application by the father for the return of his child to Argentina was resisted on the grounds that he had not established his custody rights under the law of Argentina and there was grave risk there of harm to the child. After considering the cursory treatment by the United States District Court of the application, the Court of Appeals said:
"Although the Convention seeks to facilitate the prompt return of wrongfully removed children to their country of habitual residence, it does not condone deciding that a child is another country's problem and dumping her there, and nor do we."
No criticism of that degree is directed to the conduct of the present case, but Adan provides a caution against inadequate, albeit prompt, disposition of return applications.
(Footnotes omitted)

The mother was granted leave to briefly cross-examine the father in the current case.
The desired 42 day turn around has not been achieved in circumstances where the mother seeks to establish the children’s objection to return to New Zealand. Accordingly, a report from a family consultant was required and the delay was an unfortunate but necessary consequence.
BRIEF BACKGROUND
The mother and father married in 2007 and moved to City M, New Zealand shortly thereafter. The three children were born in City M and lived there until coming to Australia last year. The parents separated in 2015 and are divorced.
The mother remarried in 2020. The mother works remotely as a professional and currently resides in the N Region, Australia. The mother is 42 years of age. Prior to her removal or retention of the children to Australia in 2022, the mother lived in rented accommodation with her husband and the children in close proximity to the father, in City M, New Zealand.
The father works for O Organisation as a professional. The father is 46 years of age. He lives alone in rented accommodation in Suburb Q, City M, New Zealand. The father has a partner, Ms P, who has a three year old child.
There have been two ‘final’ parenting orders made in relation to the children. The first one was made by consent on 23 June 2017 by the District Court of New Zealand - Family Court Division (“Family Court, New Zealand”) after the preparation of a family report commissioned by the children’s lawyer. Pursuant to that order, the children were to live with the mother and spend six nights in each 14 day cycle with the father and half their school holidays. In the context of those proceedings, the mother’s allegations that the father had perpetrated physical and emotional abuse against X were investigated by Child, Youth and Family Services New Zealand (now called ‘Oranga Tamiriki’), but no care and protection concerns were substantiated. The mother’s application, at that time, to relocate to City H, New Zealand was also an issue resolved in those proceedings with the children and mother remaining in City M, New Zealand.
There were further proceedings in the Family Court, New Zealand commenced in 2019 in which the mother alleged that the father was having mental health issues, had a violent temper, and was aggressive and abusive towards the children. A further investigation was conducted by Oranga Tamiriki. On 22 July 2020, the second ‘final’ order was made by consent providing for a continuation of the six nights in each 14 day cycle for Y and Z but reducing X’s time with the father to alternate weekends.
Oranga Tamiriki have had ongoing involvement with the family since at least late 2021 when the mother contacted them in relation to her concerns about X who was running away from home. New Zealand Police have also had ongoing involvement with the family most recently in late 2022 relating to X’s allegations against a former boyfriend, R, three years her senior. R lived at the mother’s home with X for at least part of his relationship with X. The relationship ended in late 2022.
The family have participated in family therapy and were undergoing continuing intervention by Oranga Tamariki as at October 2022.
UNCONTENTIOUS FACTS
The following facts are uncontentious:
(a)The application was filed within one year of the removal or retention;
(b)The children are under 16;
(c)The children habitually resided in New Zealand immediately prior to their removal to or retention in Australia;
(d)The father had rights of custody in relation to the children under the law of New Zealand immediately before their removal to or retention in Australia;
(e)The children’s retention in Australia is a breach of those rights of custody;
(f)In September 2022, the father consented to the removal of X from New Zealand for a temporary period but did not consent to her retention in Australia from October 2022;
(g)The father did not consent to Z’s and Y’s removal to Australia in October 2022; and
(h)The father did not consent to the retention of the children in Australia from October 2022.
WAS THE FATHER EXERCISING RIGHTS OF CUSTODY?
The question whether the father was actually exercising the rights of custody or would have exercised those rights if the children had not been removed or retained arises for consideration at two stages of the enquiry. At the first stage, (reg 16(1A)(e)), the applicant bears the onus to establish this jurisdictional fact. If that onus is fulfilled on a prima facie basis, then the mother can nevertheless seek to establish at a second stage that the father was not actually exercising rights of custody (reg 16(3)(a)(i)), when the mother bears the onus.
Rights of custody as defined in reg 4 include “rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child”. It is not in contention that the father had ‘rights of custody’[11] under the law in New Zealand, prior to the children’s removal or retention in Australia. The father’s rights of custody arise pursuant to the Care of Children Act 2004 (NZ) and pursuant to a final parenting order made by consent on 22 July 2020 by the Family Court, New Zealand. Under the Care of Children Act 2004 (NZ) the father is a guardian which entitles him to exercise all duties, powers, rights, and responsibilities of a guardian including any changes to a child’s place of residence. The 22 July 2020 order provided for Y and Z to be in the father’s care for six nights in each 14 day period and for X to be in his care on alternate weekends, and for all three children to be in his care for half of their school holidays. The father’s evidence is that he was caring for all three children although not to the extent provided for in the 22 July 2020 order. The father was involved in the decision for X to travel to Australia but not consulted about the decision for her to be retained in Australia. The father was not consulted about the two younger children being removed from New Zealand.
[11] Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 4.
In the circumstances, I find that the applicant has established the jurisdictional fact i.e. that the father was actually exercising his rights of custody at the time of removal or retention or would have exercised those rights had the children not been removed or retained. The father was caring for the person of the children prior to their removal. The father had rights to determine the place of residence of the children which he would have exercised had the children not been removed or retained by the mother in Australia.
The mother contends that the father was not actually exercising his rights of custody because he was not spending time with the children to the extent provided for in the 22 July 2020 order, in that he was only spending alternate weekends from Friday to Monday with Y and Z and only spending “sporadic” time with X. The mother concedes that the most recent time the father and X spent together was the day before her departure to Australia.
Prior to X travelling to Australia, it is common ground that the father and mother conferred about X travelling to Australia to live with the maternal grandmother for a temporary period and that the father agreed for that to occur.
I find that the mother has failed to establish that the father was not actually exercising rights of custody when the children were removed to, or first retained in, Australia and that those rights would not have been exercised if the children had not been so removed or retained. The fact that the father was not caring for the children to the extent provided for in the 22 July 2020 does not establish that he was not actually exercising rights of custody within the meaning of the Regulations.
HAS THE MOTHER ESTABLISHED THAT THERE IS A GRAVE RISK THAT THE RETURN OF THE CHILDREN UNDER THE CONVENTION WOULD EXPOSE THE CHILDREN TO PHYSICIAL OR PSYCHOLOGICAL HARM OR OTHERWISE PLACE THE CHILDREN IN AN INTOLERABLE SITUATION?
The mother bears the onus of establishing that there is a grave risk that the return of the children under the Convention would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation (reg 16(3)(b)).
When considering this exception to a return order, I am mindful of the observations of the High Court of Australia in DP v Commonwealth Central Authority[12]:
[12] DP v Commonwealth Central Authority (2001) 206 CLR 401 at 414–415 [33], 417–418 [41]–[45].
33. The content of those exceptions [including reg 16(3)(b)] must be understood against the other provisions of the Regulations which … make plain that there may be an order for return with no expectation that there will be any judicial process in the country to which the child will be returned in which any question about what is in the best interests of the child will be raised or addressed. Often enough, of course, there will be proceedings pending or anticipated in the country to which an order for return is sought. … If, on return of the child, there will be a court hearing that will decide what arrangements for custody of and access to the child will be in that child's best interests, an Australian court, exercising a discretion under the Regulations, will no doubt take that into account. But the construction of the Regulations cannot proceed from a premise that they are designed to achieve return of children to the place of their habitual residence for the purpose of the courts of that jurisdiction conducting some hearing into what will be in that child's best interests. …
…
41. ... On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
42. Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
43. Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
44. These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
45. That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
…
(Footnotes omitted)
In support of her contentions, the mother relies upon her beliefs:
(a)That if X is required to return to New Zealand:
(i)she will attempt to kill herself;
(ii)she will be relentlessly pursued by R (X’s former boyfriend) and a gang which would lead her to harm herself, or they would harm or kill her;
(b)That if Y is required to return to New Zealand she could harm herself and that she may be pursued, physically harmed or killed by R and the gang;
(c)That if Z is required to return to New Zealand he would not cope mentally or psychologically if he were separated from the mother and his siblings and that he may be pursued, physically harmed or killed by R and the gang.
The mother also relies upon her allegations of family violence perpetrated by the father against her and the children dating back to at least 2015 and the intolerable situation for the children being deprived of their relationship with her and/or being placed in the care of the father; and for the younger children if only they are the subject of the return order, of being deprived of their relationship with X.
What evidence is relied upon by the mother to support her beliefs?
X
The mother makes the following assertions in relation to X:
(a)X has had “issues with mental health and suicide (sic) in the past and I was deeply concerned to observe that she had been cutting herself”;
(b)X is “receiving intensive care from therapists ([Ms S] from [T Service]), her GP ([Dr U]) and we were also referred to the hospital [in late] 2022 by [Ms S] who was very concerned for her suicide threats. … [X] has been referred to [V Service] for specialist […] therapy and on recommendation from her GP she is trialling [a medication] daily. Her moods are still very up and down and she still remains in a very vulnerable state of mind.”
The mother alleges that in late 2022, X cut her arms. Annexed to the mother’s affidavit is a photograph (appendix 3) taken a month later purporting to show the cuts on X’s arms. No cuts on X’s arm are evident in the photograph. The mother contends she became aware of X cutting her arms in late 2022. It is not apparent why the mother waited for over a month to take a photograph or why she did not seek medical assistance at that time. There is no mention of X cutting herself in either the records from Oranga Tamariki or New Zealand Police, which one might have expected given their involvement with X and the family at the time. A safety and risk assessment conducted by Oranga Tamariki dated late 2022 does not identify X to be at risk of self-harm.
The mother annexes to her affidavit a message from X to her, on an unknown date but prior to December 2022 in which X says, among other things, that she is so tired mentally, that she cannot sleep or eat properly and that she does not want to be here anymore. Despite the mother’s evidence that X has been receiving intensive therapy, has been referred to a hospital and V Service and has been prescribed medication, there is no evidence to corroborate any such assertions.
It is nevertheless common ground that X has a history of problematic behaviours and has undertaken counselling from time to time in New Zealand. Records from Oranga Tamariki dated late 2021 refer to X’s history of depression and anxiety and having allegedly cut herself with a razor blade on some unknown occasion.
In relation to a social media post by X in 2022 in which she made allegations of sexual and physical abuse against R, the mother says the following:
41. Initially [X] refused to take down the social media post but following multiple threats being made to kill [X] and members of our family she ultimately agreed.
42. Please see Appendix 5 text messages from [Ms AA]
Appendix 5 purports to be a text message from R’s aunt, Ms AA which says:
What’s the chances of her taking it down? It’s getting out of hand I can’t control them any longer.
Well not control but mediate
It’s ok if you don’t want her too it’s getting way out of hand my end now
*My families end
...
Can I see [X] with you guys right there?
It will just be me I promise on my children
I won’t ever promise on my children if I won’t follow through
The text message set out above does not contain any threats as alleged by the mother. The aunt is offering her assistance to resolve the issue.
R and the gang
In relation to R and the gang, the mother alleges that in late 2022, she and two of her friends, Mr BB and Ms CC, accompanied X and her step-daughter, L, to R’s home to retrieve a mobile phone and the following occurred:
32. I knocked on [R's] front door. [Ms W], [R's] mother, opened the door and immediately went to punch me in the head. I yelled out to [X] and [L] to get in the car. [X] fell to her knees on the front lawn. She screamed to [R] "You were beating me and raping me you know what you did." [R] put thumbs up. I yelled to [X] to get in the car repeatedly. [R] walked out of the house with no shirt on and a [firearm] that he was pointing at us and running towards us with. I observed two other people with weapons […] in their hands. [Ms CC], [L] and I ran to the car and we dove into the foot well of the car as I thought [R] was going to shoot at us. [Ms CC] and [Mr BB] were in the front seats and [Mr BB] was attempting to reverse the car. I then jumped out and dragged [X] into the car. Once [X] was in the car we sped off.
The mother goes on to allege that she learnt at a later time that R had allegedly taken multiple videos of X being sexually and physically assaulted by R and that was the reason X and L wanted to go to R’s home to retrieve his phone. The mother contends that she “tried calling the NZ Police that night but were unable to make a report” but that she believes that “the armed defenders squad arrived” at R’s home despite her not making the report at that time. This may well have been the case.
The mother makes the following assertions:
(a)She was “made aware” that R and his family were in a gang and that his grandfather, Mr DD is a member and leader. (The mother does not identify who made her aware and the only evidence relied upon is a Facebook profile for a Mr DD and a heading on that page. The father concedes however that R “has gang affiliations”);
(b)The gang “[…] have been linked to a number of serious crimes including murders in New Zealand. They have a broad reach across both the North and South Islands…”. (The mother does not provide any evidence to support this assertion or identify the source of her knowledge);
(c)She “became aware of various members of [R’s] family and gangs posting messages such as “You and your family are dead” on [X’s] social media account in response to her post” in 2022 (in which X alleged that R had been sexually and physically abusive to her). (The mother did not produce any of the messages save one which will be set out below);
(d)That in late 2022, she received a call from a gang member stating “you better not sleep tonight”. (The mother did not identify how she knows that the person who allegedly called her was a gang member, although such a statement would no doubt cause alarm no matter who it was from);
(e)That that night, there were “[people] circling our home at all hours”. (The mother did not identify how she is aware that the people were part of a gang or related to R);
(f)That three days later, “a group of large girls known to me as [R’s] cousins approached [her] at a local shopping centre and said words to the effect that they knew [X] was going to Australia and to come outside”. (The mother left the shopping centre without incident);
(g)On other unstated dates, she “observed men […] who were members of the […] gang who have been circling our house on a daily basis”. (The mother did not identify how she knows the men were members of the gang);
(h)On an unstated date, R sent X a message threatening to harm her and himself (the mother did not produce the message);
(i)In late 2022, “[L] was beaten badly by [R’s] cousin [EE] outside the [FF Shopping Centre]. It was filmed and shared on social medial, [L] went to hospital and was returned to [City H] to stay with her Nana and family confidentially” (There is no evidence the attack was reported to police. There is no evidence from the hospital. The mother does not disclose the source of her knowledge for the identity of the attacker);
(j)On unspecified dates, X has received anonymous calls saying when she gets back to New Zealand “they’re waiting for her and going to kill her” and will rape and kill the mother too;
(k)In late 2022, R called X on a private number and “threatened her again as he is angered that she no longer communicates with him at all”;
(l)That the father has “also had threats and gang [members] driving around his home”. (The father does not deny this assertion but the only evidence of a threat to the father is a message purportedly from R on an unspecified date stating – “Heard what you’ve been doing, your a fkn chump I’ll waste you old man”. There is no evidence that any harm has come to the father.)

The only evidence relied upon by the mother to corroborate her assertions that threats have been made, are what appears to be posts from a person (identified as R’s sister) – GG - on unspecified dates and a text from a person identified as “Ms HH” (it is unclear who this person is or what relationship she has, if any, with R).
The posts from ‘GG’ do not contain threats of harm as such, save that one says “I hope someone kills you one day”. Other posts from GG point out the seriousness of the rape and abuse allegations made by X against R and suggests that next time she posts “bullshit about my brother get some solid evidence that you can actually use in court”. One of the posts from GG suggests that X’s complaint to police resulted in an armed raid of their house by police that involved R’s younger siblings having guns pointed at them. There is nothing in the police records to corroborate this latter statement although parts of the records are redacted.
The text from Ms HH is as follows:
[your] daughter has honestly fucked up [R’s] life it goes both ways not just him they both choose to get into a relationship, they both choose to have sex your daughter just likes to slap her face up then starts crying obviously [R] recorded it and send it to his uncle because he didn’t know wtf to do your daughter is just mental fucked up you need to sort her out or the people who have seen it from [R] family will (emoji)
(as per original)
Included in annexures to the mother’s affidavit are messages from close friends repeatedly advising the mother to report the alleged threats and threatening behaviour to the Police so that protection can be provided. The Police records do not contain any evidence that such complaints were made.
The father contends that the mother’s allegations about any threat posed by R and his family is “overstated to suit [the mother’s] purposes”.
Y
In relation to Y, (in addition to the matters set out above relating to the threat posed by R and the gang) the mother contends that she believes the child will harm herself because of the child’s text messages to the father. The mother did not produce the text messages but they are annexed to the applicant’s material and are referred to below. The mother also asserts that Y’s “long term trauma has not been able to be addressed properly”. It is unclear what this is a reference to. The mother also asserts that Y was suffering from “extremely frightening panic attacks” at the end of 2020 or early 2021 and subsequent to her arrival in Australia.
Z
In relation to Z, (in addition to the matters set out above relating to the threat posed by R and the gang) the mother provides no evidence to support her belief that he would not cope mentally or psychologically if he were separated from her and his siblings. I can certainly accept though that Z would be adversely impacted by his mother’s decision not to return to New Zealand if a return order is made. However, that situation, if it occurs, will be a decision of the mother’s. If there is a grave risk or an intolerable situation for Z (or indeed the other children) thereby, it is not because of the return order but of the mother’s own actions.
In Re C (A Minor) (Abduction),[13] Butler-Sloss LJ said:
The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him. The Convention does not require the court in this country to consider the welfare of the child as paramount, but only to be satisfied as to the grave risk of harm. I am not satisfied that the child would be placed in an intolerable situation, if the mother refused to go back. In weighing up the various factors, I must place in the balance and as of the greatest importance the effect of the court refusing the application under the Convention because of the refusal of the mother to return for her own reasons, not for the sake of the child. Is a parent to create the psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. …
[13] [1989] 2 All ER 465 at 471.
Family violence
The mother alleges that the father perpetrated family violence upon her and the children on numerous occasions including the following:
(a)When X was two years of age, the father threw a roll of sandpaper at her in anger and cut her leg;
(b)On an occasion prior to 2015, the father grabbed the mother by the throat;
(c)At unspecified times, the father “would throw [the children] into walls, shove them into the footwell of his car, grab them around the neck and smack them on legs, the back and twist their arms”;
(d)On an unspecified occasion, the father threatened to “drive off the road and kill them all” because the children were squabbling in the car;
(e)In 2015, the father strangled X in the living room in front of her grandmother;
(f)The father has made “repeated applications to control my living situation”;
(g)In late 2020, the father smashed X’s phone and dragged her down the hallway;
(h)In late 2020, the father caused wilful damage to the mother’s home; and
(i)In late 2022, the father became angry with Z and “threw him into a heater”.
The allegations of family violence are denied by the father.
Other evidence
The applicant annexes to the Application filed 8 November 2023, a series of messages from Y to the father on unspecified dates. Some examples of the text exchanges are as follows:
Father: call dad anytime you like honey (heart emojis)
[Y]: why would i want to
you say that but your still trying to ruin my life
the worst thing that could happen to me right now is going back to nz bc nobody there supports me
i thought everything was going great until I heard that you were trying to get me back
are you gonna tell me if your going to stop because your putting my life at risk.
your probably thinking that I’m not gonna do anything bc I’m only 9 but I swear I will kill myself
i wanna know if your gonna let me live here
if you don’t tell me I’m gonna cut my throat and then jump of the balcony and run over to the road in front of a truck tomorrow morning
…
i’ll start cutting myself. i’ll run in front of a car
…
i swear i will kill myself
…
the reason I runaway is because I have separation anxiety from mum and I hate school
…
i swear on my life if you make me come back i’ll kill myself if you want to see me come here. …
There is no evidence that Y has engaged with a psychologist in Australia. The mother contends that therapy for Y has been put on hold due to the court proceedings. The mother further contends that Y “frequently has panic attacks” and that this has been observed by “her teachers and many others since her arrival in Australia”. My understanding is that the children have not attended school since their arrival in Australia. In any event, there is no evidence from any teacher corroborating the mother’s evidence of Y’s panic attacks in Australia.
The father’s affidavit filed 16 January 2023, annexes text messages from Y’s phone to a friend of Y’s called JJ, including the following:
[Y]:that’s why we moved and i still love my dad and all but I can’t bear going to his house and leaving my mum bc I’m worried her ex will come round to ours
…
[JJ]: are you alright
[Y]: no she went around to his house and my mum and step sister picked her up and he pulled a gun and im scared he’ll find us and pull a gun on me and [Z]
…
my sisters crazy ex got the [gang] on to us bc he hates her
…
he cheated and she wanted him back so he came round and pulled a gun on all of us and now I can’t sleep bc every night it’s in my head
…
The applicant tendered the following additional material (Exhibit 1):
(a)A Psychological Assessment and report by Ms KK dated 14 July 2016;
(b)Correspondence from the lawyer for the children (in New Zealand) dated 13 September 2016;
(c)Various records from Oranga Tamariki.
The applicant also relies upon various records from New Zealand Police provided under a Freedom of Information request (annexed to the father’s affidavit filed 16 January 2023).
The 2016 evidence
It is apparent from Ms KK’s report, prepared for the purposes of proceedings in the Family Court, New Zealand and dated 14 July 2016, correspondence from the lawyer for the children dated 13 September 2016, and records produced from Oranga Tamariki for the period 8 July 2015 to 21 October 2022 that this family has a long history of problems, which have included the allegations made by the mother that the father has a history of family violence and allegations by the father that the mother has been intent on seeking to alienate the children against him. It is also apparent that the children have been exposed to their parents’ ongoing conflict.
In the letter from the lawyer for the children to the Family Court, New Zealand seeking an urgent relisting of the matter dated 13 September 2016, it is stated that matters had escalated involving a deterioration in X’s behaviour and that “behaviours in the mother’s home … may be having a direct impact upon the children and particularly [X]”. Specific behaviours or actions by the mother or adults in the mother’s home included:
(a)A burning of material (including a ‘teddy’) owned or previously owned by the father which was photographed and posted on Facebook;
(b)The mother’s relocation with the children without consent;
(c)X had begun signing her name with her mother’s boyfriend’s surname; and
(d)X’s behaviour at the father’s home had deteriorated.
The letter included opinions obtained from Ms KK which included the following:
A. The reported incidents at mother's house with the burning of a teddy is psychologically abusive of the children and destructive of their relationship with their father.
B. Counselling/therapy for [X] will not assist [X] unless and until the abusive actions in the household cease. Indeed, any attempts at counselling/therapy for [X] whilst her behaviours are supported by mother will be further destructive of her relationships with the paternal family.
C. Mother's move of house without consent, and encouraging [X] to pursue consent for move of schools is concerning and in breach of her guardianship responsibilities. Moreover, it has actively invited [X] into the dispute.
D. That in terms of paragraph 12.6.2 Factors associated with [Ms Montgomery] [a reference to her report] [Ms KK] now says that she has altered her position - in that it appears [Ms Montgomery] has moved to active alienation.
E. That there needs to be immediate changes in mother's household to prevent further alienation of [X] and destruction of her relationships.
(emphasis in original)
Evidence from Oranga Tamariki
Subsequent to the 22 July 2020 parenting order, Oranga Tamariki again become involved with the family, initially as a result of a report of concern being made by the mother in late 2021 in relation to X running away from her home to be with her boyfriend, R.[14] The father was also concerned about X and was involved with the mother in the intervention by Oranga Tamariki which followed. Concerns raised about X include truancy, shop lifting, aggressive behaviour towards the mother, drinking alcohol, possibly using drugs and threatening suicide.
[14] R’s address disclosed in the proceedings is MM Street, Suburb NN, NZ.
A report prepared by Dr LL from the child and youth mental health service at the City M Hospital, dated 23 December 2021 includes the following:
…
Summary & Case Formulations: [X] has a history of adversity starting in her early years. Research informs us that children exposed to adverse experiences have increased risk of conduct disorder, depression, dissociation, academic failure, drug and alcohol use and involvement with the juvenile justice system. These adverse events in childhood can have a big impact on early brain organisation and development and can change the structure of key neural networks included those involved in regulating stress and arousal (Bruce Perry, 2008). Therefore children who are exposed to unpredictable and ongoing stress episodes such as long standing family conflict of this nature, often develop overly reactive stress responses and increased sense of fear and perceived danger.
…
It is also acknowledged that [X] has entered adolescence which is well documented to be a difficult time for both the young person and their parents, especially with a strong willed/stubborn temperament in the mix overlaying her adverse experiences. The adolescent brain enters another phase of organisation and results in young people being much more sensitive to stress, sense of rejection, academic stressors and sense of self but also a time of being much more impulsive and less able to draw on their cognitive/thinking parts of their brain to problem solve so easily. Engaging in unhealthy and maladaptive behaviours such as smoking, unhealthy eating, risky sexual behaviour further contributes to a vicious cycle of vulnerability and potential mental health difficulties (Affi et al, 2009).
In summary, [X] is currently engaging in cycles of risky behaviour and her parents are finding it hard to put in place boundaries around her in order to keep her safe. …
Dr LL made a number of recommendations for the family to engage with a number of supportive services and for individual therapy. It was further recommended that Oranga Tamariki continue their involvement to oversee care and protection concerns.
A report prepared by social worker, Ms OO, from Oranga Tamariki, dated 15 February, 2022 includes the following:
…
I am worried that [X] is engaging in risky behaviour which could lead to physical harm or emotional trauma. It is clear when speaking to [X] she thinks she can keep herself safe given that she is 'street smart'. If [X] is not supported to change her behaviour the impact of this will be a continued decline in her mental health, possible drug use, poor educational outcomes, and she will fail to learn meaningful coping mechanisms that will enable her to fulfil her own potential.
…
It is apparent when talking to [X] that she has a deep desire to be with her family, particularly her mother, however the communication problems they experience ultimately lead to ongoing conflict which results in [X] leaving the home. … CYRAS records show that [X] talks about [the father] in an extremely negative manner, however it is also noted that [X’s] views may be shaped by adult views and parental conflict.
…
[X's] age and stage of development is at a critical time where 'pushing the boundaries' is expected and a normal teenage response. Given the history of parental conflict and trauma that [X] has experienced over her formative years she is now possibly reacting to that with a trauma informed response. It is also plausible that this could be underpinned by an Avoidant, Ambivalent or Insecure Attachment with [the mother] and [the father].
…
[X] has expressed that she would like to return home to her mother's care, preferably with no rules in place, which she thinks would then avoid arguments.
At the instigation of Oranga Tamariki, the parents and X engaged in family therapy. Oranga Tamariki have had extensive involvement with the family, particularly during 2022, which has involved a number of Family Group Conferences which have resulted in certain decisions and recommendations. Numerous professionals have been involved in providing assistance to the family.
In late 2022, an anonymous report of concern was made to Oranga Tamariki with the expectation “[t]o ensure the safety of [X] from [R]”. At that time, the records from Oranga Tamariki note that Officer PP, CPT is involved in the matter. It is alleged that R is a member of a gang. The recommendation made by Oranga Tamariki included “[i]mmediate involvement by Oranga Tamariki is needed to establish safety”.
An assessment about X’s safety was undertaken by Oranga Tamariki the next day. The police contact is noted as Officer QQ and the Oranga Tamariki contact is noted to be Ms SS. X was assessed to be “currently safe and is staying with her mother”. It was noted that X had been “allocated under intervention” to Ms RR and that “[X] has indicated that she will complete an EVI upon her return to NZ”. Officer QQ is also noted to have advised that he “would like [X] CFI’d to get further detail around the allegations. She is not to have contact to [R] during this investigation …”. The records indicate the allegations made by X against R are to be investigated upon her return to New Zealand. It is apparent that Oranga Tamariki and the Police were made aware that X was planning a temporary departure from New Zealand to spend some time with her maternal family in Australia. The records also reveal that Y and Z were to be included in the investigation upon X’s return.
There is no record of a complaint by the mother in either the records from Oranga Tamariki or New Zealand Police that X or members of the mother’s family have been the subject of death threats.
There seems little doubt that the children have all been exposed to the mother’s fears in relation to the safety of the family. The mother refers to Y and Z being too frightened to sleep alone and that they were sleeping on mattresses on the floor in her bedroom.
Evidence from New Zealand Police
The records produced by New Zealand Police under a freedom of information application are annexed to the father’s affidavit filed 16 January 2023. Those records include relevant evidence[15] including the following:
[15] Although R’s name is redacted, given the information before the Court it is clear that the records refer to him.
(a)In late 2022, Police were called by a passer-by after witnessing a verbal argument between X, R and his new girlfriend at a shopping centre. X alleged that she was pregnant but was unable to provide any details e.g. how many weeks. R alleged that X had previously made false claims of pregnancy so that he would get back with her. X followed R and his girlfriend around the shopping centre. The Police told X to leave the shopping centre but she insisted on staying around. X came across to Police as “very manipulative” – “She wanted us to talk to [R] and tell him that she is going to take him to court and that what he is doing with [redacted] is wrong and that he needs to leave her, and she needs to leave him and that she loves [R] and wants to get back with him”. X told police there had been assaults within their relationship and a “CCP” referral was done. “[X] and [R] both potentially need counselling together to sort their differences out”. (It appears the mother was aware of the incident at the shopping centre which she described to the father in a text message as follows:
Hi I spoke to [X]. apparently she went to [FF Shopping Centre] last night with this girl he is seeing, then [R] turned up and wasn’t nice to her. Can you just please make sure she keeps away from him. I don’t want her to do anything stupid. And I don’t trust the situation. Thanks);
(b)In late 2022, records note that R (16) and X (14) have recently broken up but were previously in a relationship for 10 months;
(c)That same day, X posted a video on Instagram inferring that R has previously been abusive in their relationship;
(d)R’s mother has called police regarding concerns for the safety of her son regarding a video posted online;
(e)R is currently not staying at his house as the family are concerned;
(f)The two recently separated when X found out R had been unfaithful to her. Since then there has been a social media war between them;
(g)Police attended at the mother’s home the following day and spoke to the mother and X. X alleged that she had been verbally, physically and sexually assaulted by R over their whole relationship which started in 2021. X provided what is described as a “detailed account” including reference to her attendance at R’s home the prior week. (There is no mention of any alleged threat with a weapon by either X or the mother);
(h)X is the predominant aggressor in this case. She was not at the property upon police arrival;
(i)The file refers to ongoing sexual and physical offending on 14 year old X by her 16 year old ex-partner while they were in a relationship. The victim will be going to Australia in two days to get away from the situation. X will likely complete a statement;
(j)As at two days later, a Family Safety Plan was active and the following agencies were involved with the family:
(i)TT Family Service;
(ii)New Zealand Police;
(iii)UU Organisation;
(k)As at late 2022, X has been advised that she can resurrect her complaint at any time in the future.
Evidence contained in reg 26 report by Ms VV dated 24 January 2023

Ms VV interviewed the children on 17 January 2023.
X told Ms VV that she came to Australia as a result of issues arising from her relationship with R. Ms VV’s report contains the following account of the relationship:
7. … In this relationship she experienced ongoing family violence, including suffocation, sexual assault, physical violence, intimidation and abuse. After separation, an incident occurred where she and her mother went to retrieve some property that belonged to her mother from [R’s] house, and this involved the […] gang, and resulted in [R] and his siblings pointing weapons at her (including a [firearm]) and threatening to shoot her and her mother and others.
X told Ms VV that R had been contacting her since she came to Australia and most recently contacted her in December 2022 in an attempt to win her back but then became threatening and abusive when she refused. X is reported to have said she had not seen her father in “years”. This is not an accurate statement. X said she did not feel that the father made an effort to have a relationship with her. X said she was fearful of returning to New Zealand because of the threats that had been made, the assault on L and due to R’s ‘gang’ affiliations. X said that she felt others did not take these threats seriously enough and commented that the gangs were spread all over New Zealand. It is unclear how X would know this but it aligns with the mother’s assertions.
Discussion and conclusion - grave risk and intolerable situation
What the mother must establish by “clear and compelling evidence” is that there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. That “requires some prediction, based on the evidence, of what may happen if [the children or the youngest two] are returned”. While certainty is not required, the evidence must persuade me that the risk warrants the qualitative description “grave”.
While X has a history of behavioural and possibly psychological problems, most probably related to her continued exposure to her parent’s ongoing conflict, and possibly related to the mother’s attempts to alienate the child from the father, and more recently as a result of her relationship with R, there is significant support available to X in New Zealand, not only from Oranga Tamariki and the Police but also from extended family on both the maternal and paternal sides.
While Y apparently has a history of panic attacks and has sent text messages to the father saying she will kill herself if she returns to New Zealand, I am equally concerned that a nine year old has been permitted to repeatedly send such text messages while in the mother’s care. It may indicate manipulative behaviour by the mother designed to achieve her desire to remain in Australia.
Any increased risk of self-harm for X or Y that arises as a result of the mother not returning to New Zealand with the children, would arise not because of the return order but because of the mother’s own actions in refusing to return.
Any risk that Z will not cope mentally or psychologically if a return order is made and he is separated from the mother would arise not because of the return order but because of the mother’s own actions.
X, Y and Z will have the support of each other, extended family and services as arranged by Oranga Tamariki in the event that a return order is made.
While there may well be a risk to X, Y and Z from R and his family, that risk would be ameliorated by the children being returned to City H rather than City M. The risk would be further ameliorated by the availability of support and protection from New Zealand Police and Oranga Tamariki both of whom have an extensive history of involvement and support for this family. The Police have indicated they intend to pursue their investigation of X’s allegations against R upon her return to New Zealand, should she wish for that to occur. In the event of a return order, I would also include an order that the applicant provide a copy of the order and my Reasons to Oranga Tamariki and the New Zealand Police and request that they give consideration to taking any steps necessary to ensure the safety of the children upon their return to New Zealand.
In assessing the gravity of the risk I also take into account the absence of any evidence that the father has been harmed by R or his family despite a threat having been made to him by R. L is also living now in City H and there is no evidence that she has been the subject of any further attack or threat since moving there.
It is also of some significance that R’s mother sought police intervention to protect her son which indicates a preparedness to work with police in what has become a very difficult matter involving X and R. I also note R’s aunt’s preparedness to help resolve the issues. Such actions appear to demonstrate a willingness, at least on the part of some of R’s family, to follow appropriate processes to address the issues raised by X.
The evidence that X had been pursuing R to get back with her and in the process making claims about being pregnant that may not have been true, does raise some questions about the reliability of the claimed threat posed by R and his family. Likewise, the absence of evidence that the mother complained to police about the alleged threats and harassment from members of the gang, despite her friends advising her to.
In relation to the allegations made against the father involving family violence, I note that the mother has raised allegations of that nature during the 2016 and 2019 Family Court, New Zealand proceedings and on two occasions ‘final’ parenting orders have been made by consent for the father to spend significant time with the children. Allegations of family violence have been investigated on at least two occasions by Oranga Tamariki. I further note that despite the mother’s allegations against the father, she relocated her residence closer to his in either late 2020 or early 2021. In her email to the father dated October 2022 in which she informs him that she and the children have relocated to Australia she says, among other things:
…
… We would welcome you or your family over anytime to stay and talk on Facetime regularly. Come to an agreement over school holidays and access.
….
… If any of them did not want to go to [City WW] we would not be doing this. After 15 years of also being in [City M] doing my personal best to work with you on co-parenting I would really appreciate it if you could also see that it would be nice for me to have my own family support with my Mother, Step -Dad, Brother, Cousins etc that we have not been able to be with for many many years.
We would be willing and open to working with family therapy as we had planned and work on individual therapy for [X] to deal with the things that have happened to her professionally.
…
… You may even decide [City WW] maybe for you too ... many options to discuss.
Please phone me if you would like to talk or your welcome to ring [Mr K] anytime.
The invitation contained in the above email for the father to come to Australia and stay anytime, to come to an agreement to spend time with the children over school holidays and the suggestion that he might also move to Australia, appear to be inconsistent with the mother’s submission that the father’s alleged history of family violence would expose the children to a grave risk of physical or psychological harm or an intolerable situation. The email also gives the impression that at least a significant reason for her removal and retention of the children in Australia related to a lifestyle change and to meet the children’s expressed wishes to live at City WW.
I conclude that the mother has not established that there is a grave risk that the return of the children under the convention would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation.
If I am wrong in my conclusion, I would nevertheless make a return order because I am satisfied that the appropriate authorities in New Zealand have the capacity and willingness to put in place any appropriate measures to address any such grave risks.
HAS THE MOTHER ESTABLISHED THAT THE CHILDREN OBJECT TO BEING RETURNED?
Regulation 16(3)(c) requires the mother to establish that each of the following applies in this case to each child:
(a)That the child objects to being returned;
(b)That the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(c)That the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views.
The current version of this exception came into force on 23 December 2004.[16] The amendment inserted the requirement for the child’s objection to show a strength of feeling beyond the mere expression of a preference or of ordinary wishes. It is also important to bear in mind what the Full Court said in De Lewinski v Department of Community Services (NSW)[17] (Nicholson CJ, Ellis and Warnick JJ):
In our consideration of the evidence, the observations of Nicholson CJ in Director-General, Department of Community Services v De Lewinski (1996) 131 FLR 1 at 5-6 are apposite:
... a court should not expect children to necessarily express their views within adult formulations. While courts may appreciate notions of forum, comity and jurisdiction, and that an objection to meet the terms of reg 16(3)(c) must as a matter of law be with respect to the place of habitual residence rather than the person with rights of custody, this is not the stuff of children's concepts and nor should it be expected that children will speak in such terms unless rehearsed.
…
It is clear that the objection must be an objection to being returned to the country of the children's habitual residence, … not to living with a particular parent, …. However, as was pointed out by Balcombe LJ in Re R (Child Abduction: Acquiescence) (1995) 1 FLR 716, there may be cases “where the two factors are so inevitably and inextricably linked that they cannot be separated”. …
…
We would not suggest that children must articulate that they object to being returned to the country of their habitual residence for the purpose of enabling the courts of that country to resolve the merits of any dispute as to where and with whom they should live in order to come within the provisions of reg 16(3)(c). That is not the language of children and the Court should not expect them to formulate and articulate their objection, if they had objected in the relevant sense, in that manner. The Court must have regard to the whole of the evidence and determine, no matter how the children articulate their views, whether the children object in the relevant sense….
[16] Family Law Amendment Regulations 2004 (No.3) (Cth).
[17] (1997) 21 FamLR 413 at 426.
The mother contends that X has told her that she is “scared to go back to New Zealand” and the mother asserts that Y is “terrified of being forced to return to New Zealand”. In relation to Z, the mother says that he “cries and begs never to have to go back to New Zealand”.
Y has sent a number of text messages to the father in which she has threatened to kill herself if she cannot remain in Australia.
The report prepared by Ms VV pursuant to reg 26 provides evidence addressing the three points required to be established by reg 16(3)(c).
X
X told Ms VV that “obviously” she did not want to return to New Zealand[18] and that “I don’t want to see [the father] ever again”. As noted earlier in these Reasons, X inaccurately told Ms VV that she had not seen her father for years but then complained that he did not make much of an effort to have a relationship with her. X said “there’s no way I’m getting on a plane; I’ll run away”. X then enquired of Ms VV whether police would be involved if she was ordered to return and said she had concerns that the father was seeking to separate her and her siblings. X said she has not attended school in Australia because the father would not let them.
[18] Paragraph 11 of the report states that X said she does want to return to New Zealand but given what thereafter follows this would appear to be an error.
Ms VV’s assessment about the strength of X’s objection to returning to New Zealand is that it “primarily relates to her concerns for her safety in relation to the issues with [R]” and that “her objection may be more than an expression of preference, but may relate to her desire for safety and to her concern about the ‘fall out’ of what has occurred within the community, her family and friendship groups”. Ms VV also opined:
31. [X] also appears fixed on and hardened to the issues with her father and presented with significant resentment towards him and the things she views him as having done. Her relationship with him appears to be significantly disrupted at this time. She also appears to be quite entrenched in the parental conflict and spoke in a way that suggested she is exposed to adult issues, such as viewing affidavits. This may also be a significant contributing factor towards her objection to returning to New Zealand.
In Ms VV’s opinion, although X is of an age where her views and wishes ought to be taken into account, “[X’s] presentation, speech, language, comprehension and life history leave a sense that she has an experience-related pseudo-maturity”. Further, that because of X’s life experiences, including her exposure to conflict and litigation, it is likely that she has been forced to “act and behave in a more mature manner than she may be developmentally ready for” and that this in turn has “resulted in situations where [X] may act irrationally or impulsively, and may not fully understand the consequences of her actions”. Ms VV stresses the importance of the adults in X’s life, particularly her parents, ensuring that she feels and is safe.
Finally, Ms VV opines:
38. Whilst her views should be considered, caution may be appropriate to considering whether [X’s] views and wishes should be wholly adopted, given the long history of parental conflict and her pseudo-maturity. It is possible that with support (as has previously been obtained with positive results) and guidance, she may be able to reintegrate back into her community.
Conclusion – X
I find that X’s objection to being returned relates primarily to her concerns about safety arising from the issues involving R, and her stated rejection of the father, rather than a return to New Zealand itself. In considering X’s stated objections, I also take into account the history of X being exposed to conflict between her parents and the alignment of her views to that of the mother. The consequences of such a history cause Ms VV to opine that X presents with a “pseudo-maturity” which I take to mean that she is not as mature as she may seem.
Issues of safety can be addressed in the return order, and no order I make will require X to see her father. To their credit, the mother and father have agreed that if a return order is made, the children will be delivered to the maternal grandfather in City H not to City M where R and his family live. The parents have also agreed that if a return order is made the maternal uncle will take the children back to New Zealand.
X is a vulnerable child who requires support and protection. It is apparent from the evidence before me that there is a significant support network available to X in New Zealand including from extended family on both the maternal and paternal sides and from Oranga Tamariki.
Accordingly, I am not satisfied that the mother has established this exception in relation to X.
Y
Y told Ms VV that her favourite thing to do was to dance and that she had been involved in a dance studio in New Zealand since she was about six years of age. Y told Ms VV that she missed her teacher, the dance studio and dancing. Y said they had moved to Australia because of the threats made by X’s former boyfriend to kill her family. It is concerning that Y has been made aware of this. Y said that when R was living with her family in New Zealand, she overheard X scream and saw X with a bloody lip. Y said she overheard the mother and X talking about people having guns and lots of weapons and this had made her feel very frightened. Y spoke negatively about some things in Australia including the mother’s long work hours and said that in New Zealand her mother had more time to make pancakes, take her to dance classes and go roller-skating together. Y described spending a lot of time with her maternal grandmother which she has enjoyed and described this as a positive in addition to the beach and the weather. While describing her home town in New Zealand in negative terms, she also spoke about going to the beach every day and to dance classes. She said it gave her comfort that when she was being cared for by the father, her mother was nearby. Y also said she felt supported by her guidance counsellor at school when she had panic attacks and anxiety at school.
Y provided inconsistent accounts about the father to Ms VV. On the one hand she told her that she did not enjoy spending time with him and said he had done “a lot of bad things” including saying once “if you don’t be quiet, I’ll drive us over a cliff”.On the other hand, she recounted activities they had done together such as going shopping, riding their bikes together, and climbing trees. Y told Ms VV she had a good relationship with the father’s neighbours but a short time later said they were not nice to her. Y said that since being in Australia, the father has been texting her daily and she had been responding but she said it made her angry when he sent her pictures of him playing with his step-son “because he never played with us”. In the context of these inconsistent accounts about Y’s relationship with the father I note the mother’s evidence that prior to October 2022, Y had made repeated attempts to see her father with Z for his birthday.
Y said she would feel “really unsafe” if she were to return to New Zealand due to the dangerous people who are there and who have threatened the family. Y referred to L having been “beaten up”. It is concerning that Y has been informed about this incident. Ms VV’s report includes the following further statements attributed to Y:
20. …She said the women in her family also experience mental health issues and she is concerned that everyone’s mental health would deteriorate if they were to return to New Zealand. She said she has been seeing and hearing her mother ‘gasping’ and ‘crying’ at night about this, and it is very upsetting to her to see her mother this way. She suggested her mother has worked hard to get them to Australia, lamenting the effort would have been for nothing if they are to return to New Zealand.
21. [Y] said she would “literally feel like jumping off a cliff” if an order were to be made requesting they return to New Zealand. She has text her father about her feelings, but suggested he just ‘screenshots’ her messages. She said there is nothing anyone could do to assist her if they were to return to New Zealand; worried about the ‘shoot out’ that happened with [R] and what might occur if they returned. She was shaking and appeared quite scared about this when talking about this issue.
Ms VV’s assessment of the strength of the Y’s objection to return to New Zealand as follows:
32. [Y’s] objection to return to New Zealand appears also to relate to a combination of factors; the long term conflict and litigation with her parents, her reported experiences with her father, the things she has overheard, seen and been informed of with [R] and his family, and the fun and reconnection she has enjoyed with her maternal family in Australia. A sense was gained that [Y] has re-scripted some of her experiences in New Zealand in order to strengthen her views about remaining in Australia, particularly as this related to her daily life activities, such as her views that the other children at dancing being mean, not liking her coach at [sports] and other similar reports. This appeared at odds with her other reports, such as her passion for dancing and love of [sports].
33. [Y] appears genuinely fearful; and at 10 years of age, being informed of ‘shoot outs’, of threats to kill, observing family violence perpetrated to her sister by someone in their home and the subsequent fear of living with him, observing [people] encircling their home and the distress of her mother and [X] is likely to have had a substantial impact on her emotional wellbeing, her sense of safety and a loss of control over her own life. As such, her views are suspected to be more than an expression of a preference, but a statement about her desire to feel safe.

Ms VV assesses Y’s level of maturity as being slightly advanced but that this “may relate to the adult experiences she has had, which have forced her to experience the reality of the adult world and have resulted in her feeling unsafe”. In Ms VV’s opinion, the Court should approach Y’s stated wishes with caution, given that she may be expressing her views and wishes through a “prism of instability … coupled with her developmental capacity … and her history of anxiety”.
Conclusion – Y
Y has been exposed to far more than she should have been. She is aware for instance that the since L returned to New Zealand, she was the victim of a physical assault. Whether or not Y’s knowledge of some of the details of the threat allegedly posed by R and his family have come from intentional exposure to conversations or by her overhearing such conversations matters little. The fact is that Y has not been protected from such conversations or fears expressed by others.
Understandably, given the history, Y’s objection to return is inextricably linked to her concerns about safety and she is now genuinely fearful. In my view, it is the fear of exposure to harm that Y objects to, not the return itself.
I find that the mother has failed to establish this exception in relation to Y.
Z
Ms VV noted that throughout the interview, Z referred to his father as “[Mr J]” and his step‑father as “Dad” which suggested to Ms VV that no one in his family called his father “Dad”.
Z told Ms VV they moved to Australia because X’s ex-boyfriend had done a bad thing. Z was aware that R had sent “death messages”. It is of concern that Z is aware of this. Z suggested that X tends to look after him although there is usually an adult at home working. None of the children attend school. Z spoke positively about spending time with the maternal family but did not appear to have made any independent friends. Z spoke about missing his best friend in New Zealand and described a large group of friends at his school. Z spoke positively about L’s visits to his family when they lived in New Zealand. Z also spoke about missing his pet which is still in New Zealand.
Z did not mention the father until prompted and when asked if he missed him, said “not really”. He said this was due to the “bad things” his father had done, such as smacking him for minor infractions, forcing him to go out when he did not want to and because he “threw me into a heater”. Z said he wants to stay in Australia because he likes it here and his mother and step‑father have bought a new house. Ms VV includes the following:
28. … He also wishes to remain in Australia because he feels he has met all the people he could meet in New Zealand. He was unable to express how strongly he feels about his conviction. He said he would feel “very upset” if he were to return to New Zealand and suggested there was nothing anyone could do to assist him to feel better about returning. When asked whether New Zealand is a good place to live, he responded “only to me’.
Ms VV’s assessment of Z’s objection to return to New Zealand is that it relates more to a preference to remain in Australia, rather than any specific concerns about returning to New Zealand. In Ms VV’s view, Z is likely to be feeling that he is on an extended holiday in Australia and as such it is likely he does not wish it to end.
As to Z’s level of maturity, Ms VV opines that Z presented as being immature for his chronological age. In Ms VV’s opinion, Z “is likely to have only limited capacity to understand the broader, more complex issues relating to these proceedings, and have limited ability to engage in longer term planning and contemplation”.
Conclusion – Z
Z’s objection to return to New Zealand is made more in the context of his preference to remain in Australia with maternal family whom he has enjoyed spending time with during what he perceives to be a type of extended holiday, rather than an objection to return to New Zealand itself.
Z’s objection must also be considered in the context that he has also been exposed to far more information than he should have been given his age e.g. that L has been attacked in New Zealand. It is understandable that he would be upset to return to New Zealand.
Z is immature for his age. One of the reasons given by Z for wanting to stay in Australia was because he felt he has met all the people he could meet in New Zealand.
I am not satisfied that the mother has established this exception in relation to Z.
CONCLUSION
A return order for the children to New Zealand is mandatory in this case as no exception has been established. The parents and the applicant have agreed that the children will travel to New Zealand with the maternal uncle and be delivered to the residence of the maternal grandfather in City H. I propose to include in the return order a requirement for the applicant to forthwith provide a copy of the order and Reasons for Judgment to Oranga Tamariki and the New Zealand Police with a request that they give consideration to taking any necessary steps to ensure the safety of the children upon their return to New Zealand.

I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.
Associate:
Dated: 10 February 2023

File number:	BRC 14010 of 2022
Judgment of:	CAREW J
Date of judgment:	10 February 2023
Catchwords:	FAMILY LAW - CHILD ABDUCTION – Hague Convention – Where the applicant alleges that three children were wrongfully removed or retained by the mother in Australia and seeks their return to New Zealand – Where the mother resists the making of a return order on three grounds, namely, that the father was not actually exercising ‘rights of custody’, there is a grave risk that the return of the children under the Convention would expose them to physical or psychological harm or otherwise place the children in an intolerable situation – Where return order made.
Legislation:	Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) Care of Children Act 2004 (NZ) Convention on the Civil Aspects of International Child Abduction [1987] ATS 2
Cases cited:	De L Director-General, Department of Community Services (NSW) (1996) 187 CLR 640 De Lewinski v Department of Community Services (NSW) (1997) 21 FamLR 413 DP v Commonwealth Central Authority (2001) 206 CLR 401 MW v Director-General, Department of Community Services (2008) 244 ALR 205 Re C (A Minor) (Abduction) [1989] 2 All ER 465
Number of paragraphs:	124
Date of hearing:	3 February 2023
Place:	Brisbane
Counsel for the Applicant:	Mr J. Selfridge
Solicitor for the Applicant:	McInnes Wilson Lawyers
For the Respondent:	Litigant in person

BRC 14010 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	DIRECTOR GENERAL, DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS Applicant
AND:	MS MONTGOMERY Respondent

order made by:	CAREW J
DATE OF ORDER:	10 february 2023