SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE & WALPOLE

[2019] FamCA 904

FAMILY COURT OF AUSTRALIA

SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE & WALPOLE [2019] FamCA 904

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the mother removed the children from New Zealand – Where an application is made for the return of two children to New Zealand – Where the mother contends that the father consented to the removal of the children – Where the mother asserted the father had earlier consented to the removal of the children – Where before the removal of the children the mother was aware that the asserted consent was withdrawn - Where consent not established – Where the mother asserts grave risk of harm to the children – Where grave risk not established – Where the application of the Secretary, Department of Communities and Justice granted – Child to be returned to New Zealand.

Family Law Act 1975 (Cth)
Family Law (Child Abduction) Regulations 1986 (Cth)

A v B [2015] EWHC 1562 (Fam)
DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401; [2001] HCA 39
In re P-J (Children) (Abduction: Consent) [2010] 1 WLR 1237
TB & JB (Abduction: Grave risk of harm), [2001] 2 FLR 515

APPLICANT: Secretary, Department of Communities and Justices

RESPONDENT: Ms Walpole

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney

FILE NUMBER: SYC 5925 of 2019

DATE DELIVERED: 29 November 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 21 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hartstein

SOLICITOR FOR THE APPLICANT: Susannah Louise Jerapetritis DCJ Legal, Department of Communities and Justice

COUNSEL FOR THE RESPONDENT: Mr Hill

SOLICITOR FOR THE RESPONDENT: Hague Convention Legal Practice

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Anderson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Noelle Tin, Legal Aid NSW

Orders

1. That the Central Authority and the respondent mother, Ms Walpole, make such arrangements as are necessary to cause the return of the  children X (male) born … 2016 and Y (male) born … 2017 to New Zealand by 30 December 2019.

2. That the father, Mr G born … 1973 to pay the cost of the children’s airfare to New Zealand.

3. That the mother, Ms Walpole to pay the cost of her own airfares and the expenses of her return journey to New Zealand.

4. The Australian Federal Police, as soon as practicable, remove the names of the following persons from the Family Law Watchlist in operation at all Australian international points of arrival and departure:

   (a)       Ms Walpole born … 1987;

   (b)       X (male) born … 2016; and

   (c)       Y (male) born … 2017.

5. That the Central Authority provide a sealed copy of these orders to the Australian Federal Police.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities & Justice & Walpole has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5925 of 2019

Secretary Department of Communities and Justices 

Applicant

and

Ms Walpole

Respondent

and

The Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 10 May 2019 Ms Walpole (“the mother”) removed X who was born in Australia in 2016 and Y who was born in New Zealand in 2017 (“the children”) from New Zealand where they had been living and travelled to New South Wales.  The father of the children is Mr G (“the father”). 

2. The father sought the return of the children to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations). These regulations ratified the Hague Convention on the Civil Aspects of International Child Abduction, (“the Abduction Convention”) and provide a mechanism for the prompt return of children wrongfully removed or retained as between contracting states.

3. The Secretary of the Department of Communities and Justice as the relevant Central Authority (“the Central Authority”) in Australia, started these proceedings by application filed in this Court on 4 September 2019 and sought orders that the children be returned to New Zealand and further sought interim orders necessary to ensure that the children remained in Australia pending resolution of the application.

4. On 11 September 2019 those orders were made ex parte and further orders made which amongst other matters provided for the children to be represented and a report from the Child Dispute Services was sought on the issue of the mother’s assertion that there exists a grave risk to the children should they be returned. 

5. At the hearing of the application, both parties were briefly cross examined as was the Family Consultant.

Legal framework

1. The Central Authority carries the onus of establishing relevantly here that the children’s removal from New Zealand was wrongful (reg 16(1) of the Regulations). Regulation 16(1A) of the Regulations provides that a removal or retention is wrongful if:

   (a)the child was under 16;  and

   (b)the child habitually resided in the convention country immediately before the child’s 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 the child’s 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 if the child had not been removed or retained.

2. The mother does not contest the matters necessary to be established under reg 16 and, that being the case, the Court must order the return of the children subject to the provisions of reg 16(3) which relevantly says:

   (3)   A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

   (a)    the person, institution or other body seeking the child's return:

   ….

   (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;

   …

3. Here, the mother contends both that the father consented to her removing the children from New Zealand and, further, asserts that there is a grave risk that ordering the children to return to New Zealand will expose them to physical or psychological harm or otherwise place them in an intolerable situation.  One of either of these matters if established, enlivens a discretion in the Court to refuse to make an order for the return of the children, notwithstanding that they had been wrongfully removed.

The Factual Background

1. The mother currently aged 32 was born in Australia and is an Australian citizen.  She lived in the City B area of NSW for most of her life.  She has family and another child from a previous relationship living in that area.

2. The father was born in New Zealand and is a New Zealand citizen.  The older child was born in Australia, is an Australian citizen and holds an Australian passport, the younger was born in New Zealand and is a New Zealand citizen.

3. The following seems to be the chronology of events leading to the mother’s removal of the children to Australia.

4. The parents met in NSW in about 2004, they commenced a relationship in 2007 and began to live together a few years later.  To that end the mother rented accommodation in which she and the father lived.  Although difficult to discern precisely, it seems that the father spent significant periods in prison in NSW.  When he was not in prison, the parties lived together.  The parties’ older child was born in Sydney while the father was in prison. 

5. From 28 October 2015 until 27 March 2016 the father served a term of imprisonment as a result of being convicted of driving while disqualified. 

6. On his release from prison the father was moved to an immigration detention centre pending deportation which took place in April 2017 when he was returned to New Zealand.  On 15 December 2018 the father was informed that he could never return to Australia.

7. On 25 April 2017 the mother who was then pregnant with the younger child, flew with the older child to New Zealand to join the father.  The parents and the children lived together in rented accommodation in New Zealand until shortly before the mother removed them from New Zealand in May 2019.

8. The mother says that at the end of February 2019 she and the children moved in to live with the paternal grandmother, the father having left the flat some short time before to live with his mother.  The police documents seem to indicate the date to be 3 March 2019 but nothing in particular turns on the difference. 

9. On 4 April 2019 while living with the paternal grandmother, there was an argument between the parties and a window at the house was broken.  The mother left the house taking the younger child with her.  The father retained the older child.  After several days the mother and the younger child were provided with emergency housing.

10. Thereafter, until 10 May 2019, the children were separated, the older child remaining in the father’s care and the mother caring for the younger child.  According to the mother’s affidavit, there were difficulties in her seeing the older child because the father refused to allow her to see him. 

11. On 10 May 2019 the mother applied to the Family Court in City D and obtained ex parte orders for custody of the two children and a also warrant to take the older child, who was still with the father at that time, into her care.  The order provided for the father to spend supervised time with the children.  At the same time she obtained a protection order against the father in favour of her and the children.

12. On this day, 10 May 2019, once having both children in her care, the mother left New Zealand for Australia.

Consent

1. It was contended that the father consented to the mother removing the children from New Zealand.

2. The mother said that at the time she and the father moved to live with his mother and let go the lease of the home in which they had been living, she did so in order to save money to buy fares to return to Australia because the father had agreed that she and the children could return to live in Australia.  She said:[1]

   54. At the end of February 2019, the boys and I moved in with [Ms F] where [the father] was already living. I told [Ms F] that it would only be for a few weeks until I sorted out the house at [E Town] and saved the money for the fares for me and the boys.

   55. I gave up my lease on the house at [E Town] because at that stage [the father] had agreed that the boys and I could return to Australia and that we would live short term at his mother’s place.

   …

   57. As soon as the boys and I moved into [Ms F’s] house [the father] stopped going to his job and increased his drug usage.  Things deteriorated more rapidly between us from then on and he started saying that he would not let the boys go to Australia.

   [1] Annexure A to Mother’s affidavit filed 5 November 2019.

3. The father denies he consented to the mother removing the children from New Zealand.  In his affidavit  he said:[2]

   7. Our relationship began to worsen in New Zealand. I believe this is because [the mother] missed the fast pace life in Sydney. On 15  December 2018 we found out that I was banned from returning to Australia for life.  After this [the mother] proposed to me that she fly to Australia with the children and return every six weeks however I did not agree to this as I was not convinced that she would return to New Zealand with the children. I did propose that she travel taking one child leaving me with the other when she returns and goes back to Australia she takes the other child while leaving me with one child. I would never agree to our children living in Australia as I am unable to travel in and out of Australia and I believed that [the mother] would go back to doing drugs.

   …

   9. On numerous occasions [the mother]  told me that she intended to leave New Zealand with the children without my consent. She said that when she leaves New Zealand I will never see or hearing from her again…

   (Emphasis removed) 

   [2] Father’s affidavit sworn 30 July 2019 accompanying  Application of Secretary, Department of Communities

   and Justice filed 5 September 2019.

4. On a number of occasion the police were called to the property in which the parties were living in a suburb of City D.  The reports of those attendances were attached to the mother’s affidavit.

5. The report of an attendance by police on 23 March 2018 includes a record of a conversation with the mother in which she reported that the father, after an argument would take the older child and leave with him, only to return some time later.[3]  The note continues, “[a]pparently she is in the process of squirrelling away money, getting passports and plans to fly back to Australia with the children next month”.[4]

   [3] Annexure M-02 to the Mother’s affidavit filed 5 November 2019 ‘Family Violence Summary of New

   Zealand Police’, Record – Family Violence Occurrence, 23/03/2018.

   [4] Annexure M-02 to the Mother’s affidavit filed 5 November 2019 ‘Family Violence Summary of New

   Zealand Police’, Record – Family Violence Occurrence, 23/03/2018 at page 2.

6. The report noted that she was unwavering that she intended to leave with the children.[5]

   [5] Annexure M-02 to the Mother’s affidavit filed 5 November 2019 ‘Family Violence Summary of New

   Zealand Police’, Record – Family Violence Occurrence, 23/03/2018 at page 2.

7. A note of police attendance on 9 June 2018 says:[6]

   [The mother] was adamant that there was no physical harm tonight (Although I do not believe her) she seems set on moving back to Australia but she would like to do this without him knowing as she thinks he would become very angry. …

   (As per the original)

   [6] Annexure M-02 to the Mother’s affidavit filed 5 November 2019 ‘Family Violence Summary of New

   Zealand Police’, Record – Family Violence Occurrence, 09/06/2018 at page 2.

8. Again, in a note of an attendance on 8 February 2019 at the parties’ home the police noted, “C Group called and have accommodation waiting for her. She has court on 28/2/2019 and intends to leave NZ without Mr G’s knowledge as soon as possible”.[7]

   [7] Annexure M-02 to the Mother’s affidavit filed 5 November 2019 ‘Family Violence Summary of New

   Zealand Police’, Record – Family Violence Occurrence, 08/02/2019 at page 4.

9. On 3 March 2019, the police attended the parties’ property and the note observes that the parties appeared to be in the process of moving out and police were informed that they were moving to live in the paternal grandmother’s house.[8]

   [8] Annexure M-02 to the Mother’s affidavit filed 5 November 2019 ‘Family Violence Summary of New

   Zealand Police’, Record – Family Violence Occurrence, 03/03/2019.

10. The police note reads:[9]

    …

    -    [The mother] is going to move back to Australia with the children.

    -    They both stated that this was to save some money so that they can buy a house next year in NZ.

    …

    (As per the original)

    [9] Annexure M-02 to the Mother’s affidavit filed 5 November 2019 ‘Family Violence Summary of New

    Zealand Police’, Record – Family Violence Occurrence, 03/03/2019 at page 1.

11. In reference to a conversation with the mother, the note continues:[10]

    …Happily spoke openly and without intimidation or fear or (sic) reprisal from [the father]. Stated they were moving to his mothers address in Suburb G to save money and for support.  They (her and [the father]) had previously agreed that she would move back to Sydney with the kids to stay with her mother/father and 13yr old daughter. Whilst [the father] would remain in NZ. she would be coming back in the morning to clean the address and hopefully get the bond back. She did mention when [the father] was not present the property of hers/theirs was going to be stored in a ‘cube’ and therefore was an assurance … (to [the father]) that she would be coming back to NZ.

    (As per the original)

    [10] Annexure M-02 to the Mother’s affidavit filed 5 November 2019 ‘Family Violence Summary of New

    Zealand Police’, Record – Family Violence Occurrence, 03/03/2019 at page 2.

12. The father was questioned about this entry and denied that he had ever agreed to the mother leaving New Zealand with the children. 

13. The mother, in her evidence denied that she assured the father that she and the children would be returning to New Zealand. 

14. However, during her evidence the following exchange occurred:[11]

    [COUNSEL FOR THE CENTRAL AUTHORITY]: All right.  In any event, after that time, after 3 March, [the father] didn’t agree to your coming to Australia, did he?  He changed his mind?

    [THE MOTHER]: Yes.  He changed his mind.

    [11] Transcript of 21 November 2019, p. 27 lines 4 – 5.

15. If, in fact the father had given his consent to the mother removing the children from New Zealand, the mother was well aware before she removed the children that he had withdrawn his consent.  Indeed, his change of mind is fairly clearly established in the police notes made on 25 April 2019 consequent on a complaint being made to them that the father refused to return the older child to the mother.[12]  The note shows that the police were not able to speak to the mother but spoke to the father who is recorded as saying that he had cancelled the children’s passports so that they cannot be taken back to Australia.[13] 

    [12] Annexure M-02 to the Mother’s affidavit filed 5 November 2019 ‘Family Violence Summary of New

    Zealand Police’, Record – Family Violence Occurrence, 25/04/2019 at page 2.

    [13] Annexure M-02 to the Mother’s affidavit filed 5 November 2019 ‘Family Violence Summary of New

    Zealand Police’, Record – Family Violence Occurrence, 25/04/2019 at page 2.

16. There is a clear issue then between the parties as to whether the father did indeed agree to the mother removing the children from New Zealand.  He denies that he did and the Police notes support a degree of subterfuge by the mother in planning to leave New Zealand without the father knowing.  This subterfuge does not sit comfortably with the mother believing that she had the father’s consent to remove the children.

17. Further, while the mother asserts in her affidavit that the father agreed to her removing the children, other than the bare assertion that he agreed she gives no detail of the conversation, evidence which falls short of establishing that the consent was given in “clear and unequivocal” terms.[14]

    [14] See In re P-J (Children) (Abduction: Consent) [2010] 1 WLR 1237; A v B [2015] EWHC 1562 (Fam) at [55].

18. If it were necessary to determine this issue, I am of the view that the father more probably than not did not agree to the mother removing the children permanently from New Zealand.  I am somewhat fortified in reaching that conclusion because the mother agreed she did not inform the Court in City D that she intended permanently to remove the children as the order made provided for the father to have supervised time with the children in City D.

19. However, even if he did consent to her removing the children from New Zealand, the mother agreed that after 3 March 2019 the father had “changed his mind”.[15]

    [15] Transcript of 21 November 2019, p. 27 line 5.

1. For the mother, it was argued that she, having received the father’s consent to the removal of the children, acted on that consent and surrendered the lease on the house in which they had been living, packed up their clothes and furniture and moved in with the paternal grandmother.  Thus it was argued his change of mind did not operate to withdraw that consent.

2. This argument must be rejected.  First, while consent may be given to removal of a child at a future but unspecified time the consent must be operative at the time of the removal of the child or children and it may be withdrawn at any time before the actual removal of the children.[16]

   [16] See In re P-J (Children) (Abduction: Consent) [2010] 1 WLR 1237.

3. Because the relevant consent must be to the actual removal of the children and the relevant action on it is the removal of the children from their country of habitual residence, packing bags and relinquishing the lease do not amount to an action on the consent.  Secondly the mother knew, as she said, well before the date of the removal that the father had “changed his mind”.

4. Thus the mother has failed to establish that the children were removed with the consent of the father.

Grave risk

1. That is not the end of the relevant considerations because the mother has argued that the Court should not make an order to return the children to New Zealand and called in aid of that submission reg 16(3)(b) which says:

   (3) A court may refuse to make an order under sub regulation (1) or (2) if a person opposing return establishes that:

   …

   (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;

2. In DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401 the plurality of the High Court considered the relevant principles to be applied at 417 - 418:

   41. … 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. 

   (Emphasis in original) (Footnotes omitted)

3. Thus it is against this legal context that I turn to consider the mother’s contention which is that because of the father’s physical and psychological abuse of her which he has perpetrated in the presence of the children represents a grave risk to them of exposure to physical and psychological harm. 

4. According to the mother, the relationship with the father was one marred by significant family violence against her by the father.  Her affidavit sworn in support of the making of a Protection Order in New Zealand sets out incidents of violence perpetrated on her by the father including him punching her to the face and throat and holding her around the throat and squeezing with both hands.[17]  The mother said that on one such occasion she lost consciousness.  In addition to the physical violence, the mother says that the father has abused her, calling her names in front of the children and encouraging the children to repeat those words. 

   [17] Annexure M-11 to Mother’s affidavit filed 5 November 2019, Affidavit of Ms Walpole in Support of

   Application for Protection order, sworn on 10 May 2019.

5. Not unusually in such circumstances, the mother said that she did not report every assault to the police and on some occasions made a complaint that was subsequently withdrawn. 

6. The records produced by the New Zealand police department support her contentions. In relation to a visit to the parent’s home on 23 March 2018 the attending officer noted marks around the mother’s neck “as if she was grabbed”.[18]  The mother denied being injured.  On another occasion on 9 June 2018 the attending officer’s report notes that he was sure she had been assaulted but that she denied being hurt.[19]  On 8 February 2019 police attended and took photographs of bruising and swelling to the mother’s face, noting that she was unwilling to make a statement.[20]

   [18] Annexure M-02 to the Mother’s affidavit filed 5 November 2019 ‘Family Violence Summary of New

   Zealand Police’, Record – Family Violence Occurrence, 23/03/2018 at page 2.

   [19] Annexure M-02 to the Mother’s affidavit filed 5 November 2019 ‘Family Violence Summary of New

   Zealand Police’, Record – Family Violence Occurrence, 09/06/2018 at page 1.

   [20] Annexure M-02 to the Mother’s affidavit filed 5 November 2019 ‘Family Violence Summary of New

   Zealand Police’, Record – Family Violence Occurrence, 08/02/2019 at page 3.

7. The records produced by the NSW Police show similar complaints of violence by the father against the mother and, similarly a reluctance of the mother to take the matter further.

8. The father, while conceding that he and the mother argued, said it was the mother who would scream and physically attack him.  He denies assaulting or abusing the mother as she says but said that the mother is aggressive and lashes out at him.  He said, “[t]he only time I would put my hands on her would be to restrain her to prevent her from hitting me anymore or in an attempt to calm her down”.[21] 

   [21] Annexure A to Affidavit of Secretary, Department of Communities and Justice filed 21 November 2019,

   Father’s affidavit sworn on 19 November 2019 at [26].

9. He acknowledged that the arguments would occur in front of the children.

10. The mother’s account of violence perpetrated on her by the father is supported to a significant degree by the observations of the police who attended the house from time to time in response either to calls from third parties or from the mother, including seeing obvious bruising on her. 

11. I accept that the father was physically violent to her as she said and I accept her evidence that he assaulted her by holding both hands around her throat.  It follows then that I can more readily accept her accounts of being verbally abused and belittled, notwithstanding the father’s denials.

Evidence of the Family Consultant

1. A report was prepared by a Family Consultant who was asked to consider the question of grave risk.[22]  The Consultant interviewed the mother in person and the father by telephone. 

   [22] Hague Report dated 18 November 2019.

2. She notes in her report that the parents agree that the children have been exposed to family violence, albeit each attributed the violence to the other.  She further noted that each party contends that the other uses drugs. She observed that the records of the NSW Department of Communities and Justice records support the assertion that child protection concerns had been raised about the mother’s care of her older daughter from an earlier relationship as well as concerns about the older child, the subject of these proceedings, while she was living in Australia. 

3. The Consultant considered the records produced by both the NSW and New Zealand police departments in relation to the father’s past criminal history.  She concluded that the father has a history of antisocial and criminal behaviour.

4. She said:[23]

   52. This assessment has identified significant risks to [X’s] and [Y’s] well-being, welfare and development. Such risk seems to pertain to both parents. The information available via the collateral material suggests that, in interview, neither [the mother] nor [the father] were necessarily forthcoming about their own likely problematic behaviours and the potential risks that such pose to their young and vulnerable children. Irrespective of the outcome of these current Hague Conventions proceedings, careful monitoring of the children’s care and well-being by child protection and other support services, in Australia or New Zealand, is recommended.

   [23] Hague Report dated 18 November 2019.

5. In considering the question asked of her that is whether, in her opinion “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”,[24] the Consultant identified the risks to the children posed by family violence as having particular significance but added that so too drug and alcohol abuse and criminal behaviour have a profound effect on children.

   [24] Hague Report dated 18 November 2019 at [2].

6. Turning then to the family violence, the Consultant said that based on the information available to her, the form of violence alleged by the mother as having been perpetrated by the father, was of “potentially the most dangerous in terms of possible lethality and physical harm”.[25]  In particular she noted the mother’s complaints of the father’s violence by choking.  She referenced too the father’s assertion that the mother had attacked him with a knife by poking him in the chest as being of significant concern although she noted that this incident is but one identified by the father and was said to have occurred in 2013 whereas the mother’s complaints identify ongoing abuse and violence.

   [25] Hague Report dated 18 November 2019 at [56].

7. She said:[26]

   57. Notwithstanding the allegations of dangerous and potentially lethal family violence, are also the various types of family violence alleged by each of the parents. Both provide similar accounts of verbally abuse and jealous behaviour by the other.  In this regard, the collateral information does also appear to suggest a history of aggressive and very troubling behaviour by [the mother], including assault of police officers.

   [26] Hague Report dated 18 November 2019.

8. She referred to the very serious consequences for the children’s physical and emotional safety as a consequence of being exposed to family violence of the nature as alleged.[27]

   [27] Hague Report dated 18 November 2019 at [55].

9. She said:[28]

   61. … at least one way of providing a buffer, from the physical, developmental and psychological harm caused by family violence, is for them to have at least one parent, or some other adult, available to protect them and to prioritise their needs. Unfortunately, the information available for this assessment suggest that, likely for a variety of complex reasons related to their own needs and possibly troubling circumstances, [the mother] and [the father] have both previously experienced challenges in protecting their children from their long standing toxic relationship.  Therefore any attempts that can be made now to reduce at least one of the risks identified for these children, such as reducing their risk of further ongoing exposure to family violence, may at least afford [X] and [Y] some increased protection

   62. In relation to the prediction of current and future family violence risk, the events of the past are more usually the most reliable indicator and, therefore, it is assessed that such risks are extremely high in this matter. Further, also given the reported history, the risks to the children of future experiences of, and exposure to, family violence is assessed to be extremely high if their parents were to live in close geographical proximity.

   63. Due to the multiple potentially very serious forms of harm to [X] and [Y] by their ongoing experience of, and exposure to, family violence and other compromised parental behaviour, and in combination with the lack of protection from family violence that the children have been afforded to date, it is assessed "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".

   (Emphasis in original)

   [28] Hague Report dated 18 November 2019.

10. While at first agreeing that her concern that the parents not live geographically close did not mean living in different countries, in her oral evidence she expanded on her views.  She said:[29]

    [FAMILY CONSULTANT]: I would say the closer the parents live together the greater risk of the past repeating itself, which is a pattern of reconciliation, despite a pattern of very serious concerns.  And the closer the parents are, whether it’s in the same suburb, the same city or the same country, those risks are high. 

    [29] Transcript of 21 November 2019, p. 37 lines 10 – 13.

11. After being invited to consider the efficacy of making orders for the protection of the children, she said:[30]

    [FAMILY CONSULTANT]: ---I would agree it would be some protection, but, again, I would consider that the past is the best prediction of current and future risk for these children.  And both parents have a history, I think a very clearly documented history of not complying with authority or orders, so I think there – in this particular matter there is a very high risk of non-compliance with any orders that are made.

    [HER HONOUR]:   By both of them?  By both of them?‑‑‑

    [FAMILY CONSULTANT]: By both parents.  And that’s my – that’s the risk for the children.  It’s not solely one parent or the other.  I think it is a risk, because this is a well-documented history in this matter with both parents.

    [30] Transcript of 21 November 2019, p. 37 lines 20 – 29.

12. Putting geographical distance between the parties albeit in City D was dismissed by the Consultant who said:[31]

    [FAMILY CONSULTANT]: …And it’s my understanding that at one point the parents were living in different areas of City D and these dynamics remained.  I understand from talking to the father that at one point the mother was living in – and I don’t understand the geography of City D, but that one parent – they were living in different areas of City D and the same issues were present.

    [31] Transcript of 21 November 2019, p. 37 lines 35 – 39.

13. In essence, therefore, the Consultant’s opinion was that the children needed to be protected from their parents’ abusive relationship rather than from the father.  She said:[32]

    [FAMILY CONSULTANT]: ---This is not an issue about the father seeing the children.  This is an issue, in my assessment of the – of the risks to the children, it is the risks to the children of being exposed to ongoing very serious, potentially very lethal family violence.  It’s – this is nothing to do – my assessment has not got anything to do with the children having supervised time or not with the children.  It is about the toxic parental relationship of a longstanding nature and the risks to the children’s safety and development by being in the middle of that.  So that’s – that’s – I don’t think it’s to do with supervised time or not.

    [32] Transcript of 21 November 2019, p. 37 line 42 – p. 38 line 2.

14. In effect, the Consultant identified the risk of harm to the children as being the risk that the parents will resume their relationship, a relationship characterised by violence and abuse.  Her opinion thus was that if the mother lives in Australia and the father cannot enter Australia, the risk is obviated. 

15. However, while the father cannot travel to Australia to resume the relationship with the mother, there is no impediment to her returning to New Zealand to join him as she did in April 2017.

16. There can be no doubt that there is a great need to protect these children from exposure to the abuse and violence that mars their parent’s relationship.  The Consultant’s opinion as to the effects on children both in the long and short term, of exposure to violence is well understood and well accepted.

17. The question is whether the mother has established that to return the children to New Zealand (and accepting that she would, as she said, return with them) would expose them to a grave risk of harm which, in this case would eventuate if the parties resumed their relationship.

18. There was no suggestion by the mother that she had any intention of resuming her relationship with the father.  When she was asked where she would live if an order for return to New Zealand was made, she made it clear that living with the father’s relations was out of the question.

19. Thus, while I accept that there is an extremely serious, perhaps grave risk that the children would be exposed to harm if they returned to New Zealand and their parents resumed their relationship, I am satisfied that there is no immediate prospect of that happening and the risk eventuating.

20. In those circumstances, the mother has not established the facts sufficient to enliven the Court’s discretion pursuant to reg 16(3). 

21. However, even if reg 16(3) had been satisfied, I would not exercise the discretion to refuse to return the children.

22. It was not suggested that the New Zealand Courts were not able to make orders in protection of the children and the mother.  Indeed before leaving New Zealand the mother sought and obtained orders for custody of the children and a protection order for her and the children in protection from the father. 

23. The New Zealand Family Court is seized of the proceedings and has already made orders on the mother’s application.  The mother has indicated a willingness to proceed with the matters in the City D Family Court.[33]  A further date for hearing had been allocated to the matter on 26 November 2019. 

    [33] Annexure M-15 to the Mother’s affidavit filed 5 November 2019.

24. The mother  agreed that she had not, in the past, sought protective orders from the Courts in New Zealand, however when she did in May 2019, the Court moved quickly to make those orders and it is reasonable to expect that the Court will move equally quickly if further orders are sought.

25. It was argued for the mother that even if she obtained orders in New Zealand for her protection and for the protection of the children, the father’s a history of non-compliance with orders suggests that he would defy any such order.  The father’s criminal history, perhaps entirely consistent with the Consultant’s description of him having a history of anti-social criminal behaviour, contains charges of breach of bail conditions, and breaching conditions of his parole.

1. However, even taking into account the father’s past apparent breaches of bail conditions and non-compliance with parole conditions, does not persuade me that the present protection order or further, similar orders, would not adequately protect the mother and the children.  I am comforted in this finding by the mother’s evidence that when the father sought to approach her at the emergency accommodation provided to her, the owner of the premises sought and obtained an order preventing the father’s entry to them. It was not suggested that the father breached that order, although I accept that very little time passed between the mother and children being placed in that accommodation and her leaving New Zealand.

2. In her oral evidence, the Consultant made a passing reference to a protection order made in earlier proceedings in NSW which, she said, had been ineffective.  It is difficult to identify from the incomplete and often unexplained documents attached to the mother’s affidavit the order to which the Consultant was referring.  However, it seems tolerably clear that in January 2014, in a statement to police in relation to criminal proceedings against the father, the mother said that despite there being an Apprehended Violence Order in place at the time, the father contacted her from prison and on his release.  She said,“[t]he reason I didn’t tell the Police that [the father] was contacting me is because I believed [the father] would change and I loved him at the time”.[34]

   [34] Annexure M-01 to the Mother’s affidavit filed 5 November 2019, ‘Statement of Witness’ Ms Walpole dated 15 January 2019 at [4].

3. This seems to indicate that while the father, in breach of the order, contacted the mother, she welcomed that contact.  However, given her evidence in this application, the mother would not welcome the father’s contact and it is highly likely that she would seek and obtain police protection.

4. In TB & JB (Abduction: Grave risk of harm), [2001] 2 FLR 515 Arden LJ said:

   97.…The policy of the Convention as set out above seems to me to require that the evaluation of risk is carried out on the basis that the abducting parent will take all reasonable steps to protect herself and her children and that she cannot rely on her unwillingness to do so as a factor relevant to risk. The onus would thus be on the mother in this case to show that, even if she took all reasonable steps, she would not be adequately protected from Mr H in New Zealand.

   98.In this context, in my judgment, the court is entitled and bound to take the view in the absence of evidence to the contrary that the courts of New Zealand can make appropriate protective orders, extending if necessary to a full prohibition of any form on contact or entering the area where the family live, and can effectively punish any non-compliance. …

5. There is no reason to suggest that, the New Zealand courts could or would not act in support of orders made and punish any non-compliance.

6. I am thus of the view that there should be an order that the children be returned to New Zealand.

I certify that the preceding eight-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 29  November 2019.

Associate: 

Date:  29 November 2019