STATE CENTRAL AUTHORITY & MORTON

[2010] FamCA 77

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & MORTON [2010] FamCA 77

FAMILY LAW – CHILD ABDUCTION - Hague Convention - Children brought to Australia from New Zealand by the mother - Father seeks return of the children to New Zealand pursuant to the Hague Convention - Mother argues there is a grave risk that the return of the children to New Zealand would expose them to physical or psychological harm or otherwise place them in an intolerable situation - The Court is not persuaded by the mother’s argument and orders are made for the return of the children to New Zealand, subject to certain conditions

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

Cooper v Casey (1995) FLC 92-575
DP v Central Authority; JLM v NSW Department of Community Services (2001) FLC 93-081
Gsponer v Director-General, Dept of Community Services, Vic (1989) FLC 92-001
Murray v Director, Family Services, ACT (1993) FLC 92-416

APPLICANT: Director-General, NSW Department of Human Services as State Central Authority

RESPONDENT: Ms Morton

FILE NUMBER: SYC 6976 of 2009

DATE DELIVERED: 12 February 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Austin

HEARING DATE: 8 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Roderick Best, Legal Services Unit, Department of Community Services

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Ms Wearne, Legal Aid NSW

Orders

1. Subject to compliance with the conditions set out hereunder within 28 days hereof, the applicant and respondent shall make and implement all such arrangements as may be necessary to return J, born … April 2007, and L, born … May 2008, (“the children”), to New Zealand, in the company of the respondent, within 7 days of compliance with such conditions.

   Conditions

   (a)Mr C (“the father”) shall institute parenting proceedings in New Zealand under the Care of Children Act 2004 or like legislation, against the respondent, to permit their contest of proper parenting orders in respect of the children.

   (b)The father shall, within the proceedings mentioned in subparagraph (a) above, secure an ex parte order against himself, or alternatively proffer to the New Zealand Court an enforceable written undertaking binding himself, for the protection of the respondent in terms consistent with the following.

   (i)The father must not assault, molest, harass, or otherwise interfere with the mother.

   (ii)The father must not approach within 100 metres of the mother or her place of residence.

   (c)The father shall serve upon the applicant a sealed copy of the initiating process by which the proceedings referred to in subparagraph (a) above are commenced, a sealed copy of the order or undertaking referred to in subparagraph (b) above, and a copy of the pre-paid air tickets referred to in subparagraph (d) below.

   (d)The father shall forward to the respondent by registered post, addressed to “[D Street, S, New South Wales]”, pre-paid air tickets for the mother and each child to travel together by flight in economy class between Sydney, Australia, and Auckland, New Zealand, on a date no sooner than the date by which he has complied with all of these conditions, and on a date no later than 7 days after the date by which he has complied with all of these conditions.

2. Subject to compliance with the conditions set out within Order 1 within 28 days hereof:

   (a)Orders 1.1, 1.4, 1.5 and 1.6 made on 23 November 2009 are discharged so as to permit compliance with Order 1.

   (b)The Registrar of the Family Court of Australia shall release to the respondent any passport held by the Registrar relating to the respondent and the children so as to permit compliance with Order 1.

   (c)Any and all outstanding applications are dismissed.

3. In the event of the father’s failure to comply with the conditions set out in Order 1 within 28 days hereof:

   (a)       The Form 2 Application filed on 18 November 2009 is dismissed.

   (b)       Orders 1.1, 1.4, 1.5 and 1.6 made on 23 November 2009 are discharged.

4. The applicant shall forthwith serve a sealed copy of these orders upon the father.

5. Leave is granted to the parties to serve a sealed copy of these Orders upon the Commissioner of the Australian Federal Police.

6. Liberty to apply on 24 hours notice for further procedural orders.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Morton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6976  of 2009

Director-General, NSW Department of Human Services  as State Central Authority

Applicant

And

Ms Morton

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern an application under the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) for orders compelling the return of two young children from Australia to New Zealand.

2. The application is brought by the Director-General of the New South Wales Department of Human Services in her guise as the administrative head of the New South Wales Central Authority appointed under the Regulations.

3. The respondent to the application is Ms Morton, the biological mother of the two children.

Documents read in evidence

1. The applicant relied upon the Form 2 Application filed on 18 November 2009. The Application annexed various documents, including affidavits sworn by a legal officer of the applicant (Renee Dane), the biological father of the two children (Mr C), and the New Zealand solicitor retained by the father (Kevin James Casey).

2. The applicant also read in support of the Application another affidavit sworn by a solicitor of the applicant (Madelaine Audrey Pereira), filed on 3 February 2010, which annexes a second affidavit sworn by the father.

3. In rebuttal of the Application, the respondent relied upon:

   a)Her Form 2A Answer, filed on 15 January 2010;

   b)Her affidavit, filed on 15 January 2010; and

   c)An affidavit of her psychologist, Ms S, filed on 15 January 2010.

4. The admissibility of the applicant’s affidavit material was governed by the Regulations (reg 29). The respondent did not seek to cross examine any of the applicant’s witnesses who were available.

5. Similarly, the applicant did not seek to cross examine the respondent or her psychologist.

6. The parties were content to contest the proceedings on the basis of the material filed and the making of submissions with respect thereto.

Background

1. The two children in issue in the proceedings are J, born in April 2007, and L, born in May 2008, (“the children”). The children are currently aged 2 and 1 years respectively.

2. Both children were born in New Zealand.

3. The respondent is the biological mother of both children.  The respondent was born in 1990 and is currently 19 years of age.

4. The biological father of the children (“the father”) was born in 1983 and is currently 26 years of age.

5. The respondent was born in New Zealand but lived in Australia for four years between 1998 and 2002.  She returned to live in New Zealand with a relative in 2002 when she was aged 12 years.  She settled with her relative in a small provincial town of New Zealand named W.

6. In New Zealand the respondent met the father and they struck up a relationship.

7. The respondent alleges that she and the father commenced a sexual relationship in approximately February 2004, at which time she was aged 13 years and the father was aged 20 years.  The father does not deny that to be so.

8. The respondent alleges that she and the father committed to an exclusive relationship with one another about a year later on 28 February 2005.  Similarly, the father does not dispute that fact.

9. Thereafter, the respondent and the father lived together, either alone or with the father’s mother, in W.

10. It is common ground that the relationship between the respondent and the father was fractious.  It was punctuated by domestic violence.

11. The problems in the relationship escalated to the point that in May 2009 a violent incident occurred between the respondent and the father in their home.  That occurred in the presence of both children.  The respondent reported the matter to Police and the father was arrested and charged with “assault”.  Shortly thereafter, in June 2009, the father was convicted of that offence for which he was sentenced to perform 50 hours of community service work.  The father was additionally directed to attend a domestic violence rehabilitation course entitled “Living Without Violence”.

12. The respondent and the father endured further arguments over the weekend commencing on the evening of Friday, 26 June 2009.

13. By Monday, 29 June 2009, the respondent had determined to depart New Zealand for Australia with the two children. She engaged her friend to purchase airline tickets for herself and the two children to depart New Zealand that evening.

14. The respondent purchased one-way tickets.  Although the respondent asserts that she did not necessarily regard her relationship with the father as irreconcilable at that time, she certainly had no immediate intention to return to New Zealand upon her arrival in Australia.

15. The respondent’s departure from New Zealand with the children that evening occurred without the father being notified of her intention.

16. The respondent telephoned the father the following day, subsequent upon her arrival in Australia, to inform him that she and the children were in Australia.

17. Since that time the respondent and the children have resided with the respondent’s father in Sydney.

18. On 30 June 2009, the father successfully procured a court order in New Zealand prohibiting the removal of the children from New Zealand.  The order proved worthless as the respondent and children had already departed New Zealand at the time that order was made.

19. Following the respondent’s departure from New Zealand with the children, the father solicited legal advice about the institution of proceedings to secure the return of the children to New Zealand.

20. Thereafter, the father authorised the New Zealand and Australian Central Authorities to act on his behalf in respect of an application for the return of the children to New Zealand.

21. The applicant subsequently filed such application on 18 November 2009, which was listed for hearing on 8 February 2010. That is the Application now being considered.

Issues

1. The issues in dispute between the parties are relatively narrow.

2. The respondent concedes the existence of those circumstances under reg 16(1) of the Regulations pursuant to which the Court must ordinarily order return of the children. In particular, the respondent concedes:

   a)An application is made for a return order in respect of the children.

   b)The application was filed within one year of the children’s removal from New Zealand; and

   c)The applicant, as the responsible Central Authority, has satisfied the Court that the children’s removal was wrongful under reg 16(1A).

3. In those circumstances, it was agreed that the Court is obliged to make a return order in respect of the children, subject to the provisions of reg 16(3).

4. The case posited by the respondent is that the Court should refuse to make a return order in respect of the children because there is a grave risk that the return of the children to New Zealand would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation, so as to invoke the operation of reg 16(3)(b). Those categories of risk are to be interpreted and applied disjunctively (see Gsponer v Director-General, Dept of Community Services, Victoria (1989) FLC 92-001 at 77,158-77,159)

5. The controversy centres upon the respondent’s ability to discharge the burden she bears of proving those matters which fall within the ambit of reg 16(3)(b).

6. In the event that the respondent satisfactorily discharges that burden of proof, the Court’s discretion is enlivened to determine whether the children ought still be returned to New Zealand, and if so, the conditions upon which such a return order should be made (see DP v Central Authority; JLM v NSW Department of Community Services (2001) FLC 93-081 at 88,389-88,390).

Evidence and submissions

1. It was contended on behalf of the respondent that the circumstances of grave risk of exposure of the children to physical or psychological harm or their otherwise placement into an intolerable situation was proven by reference to the evidence adduced by her in respect of two issues, namely domestic violence and her mental health status.

2. The respondent’s case is wholly predicated upon a chain of reasoning to the following effect:

   a)If the children are to return to New Zealand, then the respondent will return with them, and

   b)Upon her return to New Zealand, the respondent will reconcile her relationship and resume cohabitation with the father, and

   c)As a consequence of that reconciliation, the respondent will again be subjected to domestic violence at the hands of the father, and the children will be witness to that domestic violence, and

   d)The respondent’s psychological health will also deteriorate in that situation, causing her parenting capacity to be impaired, and

   e)Those circumstances, either individually or conjunctively, will give rise to a grave risk of the children being exposed to physical or psychological harm or otherwise being placed in an intolerable situation.

3. Each of the links in that chain of reasoning deserves close scrutiny.

Return of the Respondent to New Zealand

1. The respondent conducted her case upon the premise that the children should only be returned to New Zealand, if circumstances so require, in her company.

2. The respondent has adduced evidence to the following effect:

   “If the Court orders the children to go back to New Zealand, I know for the children’s sake I would have to go back, but it would be extremely difficult for me to go back.”[1]

   [1] Respondent’s Affidavit, par 111

3. That is not necessarily compatible with the attitude of the father. He has asserted:

   “If the children are ordered to return to New Zealand, I will apply to the Family Court to have shared care of both [L] and [J]. In the event the Respondent refuses to return to New Zealand, or refuses to remain living here, I will seek to have [L] and [J] in my full time care.”[2]

   [2] Father’s Affidavit sworn 12 October 2009 par 40

4. Irrespective, the father plainly contemplates the preferential residential arrangement for the children to be their shared care by the parents in New Zealand, which assumes the respondent’s return to New Zealand from Australia with them.

5. The applicant has not expressly conceded in these proceedings that the children can only be ordered to return to New Zealand in the care of the respondent, but equally has not contended at any point that the children ought be returned to New Zealand in isolation from the respondent.

6. Although the orders proposed by the applicant in the Application did not expressly say so, by the time of final submissions, the applicant contended for an order to the effect that the children be ordered to return to New Zealand in the care of the respondent.

7. The preponderance of evidence invites a clear inference, which I draw, that the respondent has been the primary carer for the children in their short lives.

8. The children have lived with the respondent in Australia since 30 June 2009. In that time they have not seen the father at all, and they have communicated with him by telephone not more frequently than weekly.[3] There is no evidence that the children have had any form of contact at all with extended members of the paternal family in New Zealand.

   [3] Father’s Affidavit sworn 12 October 2009 par 26; Respondent’s affidavit pars 92-95

9. Given their tender ages, their probable attachment to the respondent as their primary carer, and their comparative isolation from the paternal family, I am satisfied that it would be a substantial wrench for them to be returned to New Zealand other than in the care of the respondent. Their welfare requires that that not happen.

10. Consequently, the realistic factual basis upon which the litigation has been contested is that the children will be ordered to return to New Zealand in the care of the respondent, or not ordered to return at all.

Reconciliation between the Respondent and Father

1. The submission made on behalf of the respondent is that she is particularly vulnerable and will be unable to withstand any pressure to reconcile her relationship with the father upon her forced return to New Zealand with the children.

2. The respondent formed her relationship with the father when she was only an adolescent. Although the father was himself only a young man, he was at least an adult. Their relationship soon became sexually intimate. They were living in a de facto relationship by the time the respondent was aged 15 years. The children were born to their relationship whilst the respondent was still only a teenager. They lived in a small town and the respondent was not employed outside their home. Those uncontested facts warrant an inference of a power imbalance in the relationship between the respondent and the father.

3. It is asserted that the respondent effectively has nowhere else to go upon return to New Zealand, other than back into a household with the father. Although she has an aunt living in the same town as the father, it was that aunt who directed the respondent to return to the relationship with the father following the incident of violence and transitory separation in May 2009, and so she is not regarded as an independent source of support. An aged grandmother of the respondent who lives in Auckland is said to be too infirm to accommodate or assist the respondent in any material way.

4. Since arrival in Australia, the respondent has sought therapy for her depressive condition. That therapy has been afforded by a psychologist, Ms S. A report prepared by that psychologist about the respondent is in evidence. The respondent reported experiencing occasional suicidal ideation. The psychologist regarded the respondent’s symptoms as consistent with a diagnosis of major depression, and opined that there is a high likelihood of the respondent resuming her relationship with the father should she return to New Zealand, in which case the past problems with the relationship would recur and the respondent’s depressive symptoms would escalate.

5. The respondent says that because of her subservience to the father, the lack of any independent source of support, and her precarious emotional condition, she will guilelessly return to the relationship with the father.

6. There is some force in that argument, but I am not persuaded that the available evidence inexorably leads to a conclusion that the parties will reconcile, as has been suggested.

7. The respondent was able to muster the courage to sever her relationship with the father in mid 2009. Although it is apparently common ground that the respondent suggested reconciliation in Australia shortly following the separation,[4] she has since successfully resisted any urge to return to New Zealand and reconcile with the father.

   [4] Father’s Affidavit sworn 12 October 2009 par 27

8. As a result of the psychological therapy received by the respondent to date, the psychologist reports that the respondent has:

   “…developed some insight into the reasons why she formed such a bond with [Mr C] (the father) and the reasons why this occurred at such a young age. She is also beginning to realise that a relationship at that age is inappropriate given the limited emotional resources an adolescent has available.”[5]

   [5] Affidavit of Ms S

9. The psychologist also reports that the respondent is:

   “…highly motivated to work on these underlying issues.”[6]

   [6] Affidavit of Ms S

1. The psychological evidence is suggestive that, whilst the respondent still has some considerable way to go with her therapy, material progress has been made. She has acquired insight into the power imbalance in the former relationship with the father and now has at least a rudimentary understanding of why she came to be so attached to and dependent upon the father. The fact that she is now armed with that knowledge is itself an impediment to her resumption of the relationship, despite the psychologist’s contrary opinion.

2. There are limitations to the evidence of the psychologist. The psychologist has only modest clinical experience and has not been tested in cross examination. There is no indication that the psychologist has been appraised of all of the evidence placed before the Court. In fact, I infer to the contrary because of the absence of mention of it. There is no overt indication in either the psychologist’s affidavit or annexed report that he or she has familiarity with the obligation of impartiality cast upon expert witnesses. There is no compliance with Division 15.5.5 of the Family Law Rules. The strength of the evidence is therefore weakened and I do not uncritically accept it, even in the absence of countervailing expert evidence.

3. The sole basis of the psychologist’s conclusion that there is a “high likelihood” of the respondent resuming her relationship with the father if she returns to New Zealand seems to be an assumption that the respondent has “very limited resources and support in New Zealand”. I am far from persuaded by the either the logic or force of that deductive process.

4. The respondent has said that, until recently, she had continued to hope that there was a chance of reconciliation.[7] She now realises that the father has formed a new relationship with another woman.[8] Inferentially, she now knows that a reconciliation is unlikely.

   [7] Respondent’s Affidavit par 88

   [8] Respondent’s Affidavit par 89

5. That is consistent with the evidence of the father, who has repeatedly asserted that he has no intention of reconciling with the respondent.[9] Although the respondent is sceptical about the reliability of the father’s denial of any prospect of reconciliation, the scepticism has no proper evidential basis. It is really just conjecture.

   [9] Father’s Affidavit 12 October 2009 par 27; Affidavit of Madeleine Pereira, Annexure A, par 22

6. Of course, any order requiring the children to return with the respondent to New Zealand only requires their return to New Zealand – not to any particular place in New Zealand. If a return order is made, it is for the respondent to decide where she will live with the children pending resolution of the parenting proceedings in that country. There is no obligation upon the respondent to return to W, much the less the home of the father in W.

7. If the respondent chooses to return to W then there is some evidence to suggest that she does have some independent sources of support available to her there.

8. The New Zealand Department of Child, Youth and Family Services became involved with the family in May 2009. Officers of the Department concluded during their investigations that the respondent was involved with the W Resource Centre,[10] and a “young mum’s group”.[11]

   [10] Respondent’s Affidavit, Annexure B, pages 16 and 17

   [11] Respondent’s Affidavit, Annexure B, page 28

9. The respondent also told the officers that she has “loads of other whanau in the town”.[12] The parties agreed that “whanau” means “family”. Although the other evidence suggests that an aunt is the only relative of the respondent in W, her comments should be interpreted as a reference to her friends in W, to whom she told the Department that she was close.[13]

   [12] Respondent’s Affidavit, Annexure B, page 17

   [13] Respondent’s Affidavit, Annexure B, page 28

10. The evidence therefore suggests that the respondent is comfortable with the network of friends she has in the township of W, should she choose to live there, and would not be isolated and therefore dependent upon the father.

11. The applicant tendered[14] a series of publications of the International Parental Child Abduction Service and the International Social Service. I am satisfied that those publications prove that there is a New Zealand branch of that organisation. Subject to the respondent’s voluntary engagement with that organisation, she will be afforded with services including counselling, domestic violence advice, and referrals to other government bodies.

    [14] Exhibit A

12. Self-evidently, none of those services are yet in place for the respondent. She would need to avail herself of the services. However, should she choose to do so, it seems quite plain that she will be assisted in New Zealand with applications for public housing, social welfare income, and legal aid for engagement in parenting proceedings with the father.

13. It is also clear that, even if she was ignorant of it before, the respondent is now aware of the types of community and social support services that are available to a woman in her predicament. She has been informed of, and referred to, them by her psychologist.[15] Those services include young mother’s support groups, and both short and long term supported accommodation.

    [15] Affidavit of Ms S

14. Those types of services are available to the respondent in Australia, and as has been pointed out by the Full Court, it would be presumptuous and offensive in the extreme to think that New Zealand does not have a litigious and social support system similar to that found in Australia (see Murray v Director, Family Services, ACT (1993) FLC 92-416 at 80,259; Cooper v Casey (1995) FLC 92-575 at 81,698).

15. I accept the evidence of the father that he has no intention of resuming cohabitation with the respondent. I accept that the respondent now realises that a resumption of cohabitation is unlikely because of the father’s attitude. I find that the respondent has numerous sources of support, which are independent from the father, and that she now has insight into the destructive nature of her past relationship with the father. It is also clear that the respondent may resort to services that will see her assisted with basic needs such as income and housing. I am satisfied that her fresh insight will equip her with the volition to avail herself of those services.

16. I am not satisfied, on the balance of probabilities, that the respondent will reconcile her relationship with the father and resume cohabitation with him if she is compelled to return with the children to New Zealand.

Domestic violence

1. It is uncontentious that violent conduct has permeated the relationship between the respondent and the father.

2. The respondent and the father remain in dispute about the frequency and degree of that violent conduct, and also about whether the respondent has acted violently towards the father.

3. The respondent alleges that she was the victim of both physical and sexual abuse at the hands of the father over many years.[16] Her evidence also demonstrates that the father regularly intimidated her.

   [16] Respondent’s affidavit pars 26-59

4. The father flatly denies his alleged sexual abuse of the respondent.[17]  The father concedes his physical abuse of the respondent, but also alleges that the respondent was physically abusive towards him.  He furthermore asserts that they each willingly engaged in heated arguments and intimidated one another.

   [17] Affidavit of Madeleine Pereira, Annexure A, par 5.

5. Neither the respondent, nor the father, have been tested on their evidence.  In those circumstances, it is ordinarily difficult for the Court to make definitive findings of fact. Nevertheless, there is some other corroborative evidence available.

6. When the respondent was assaulted by the father in May 2009, the New Zealand Department of Child, Youth and Family Services began an investigation into the family.[18]  The Departmental file is in evidence.[19]

   [18] Respondent’s Affidavit, par 67

   [19] Respondent’s Affidavit, Annexure B

7. When interviewed by officers of the Department the father admitted that he was the instigator of the family violence, at least in respect of the incident in May 2009 that brought the family to the attention of the Department.[20]

   [20] Respondent’s Affidavit, Annexure B, pages 10-11

8. The father also admitted to the Department officers that:

   “…he has whacked [Ms Morton] (the respondent) in front of the children.”[21]

   [21] Respondent’s Affidavit, Annexure B, page 11

9. The father was less forthcoming with his admissions in his affidavits, other than in respect of the incident in May 2009, for which he was charged and convicted. I am left with the impression that the father has minimised his culpability in respect of the domestic violence perpetrated by him.

10. The father has adduced evidence about his participation in a domestic violence rehabilitation course.[22] He infers that it has been of enormous benefit to him. That may be so, but it would be facile to conclude that completion of a short rehabilitation course is a complete panacea for such an ingrained problem as systemic domestic violence.

    [22] Father’s Affidavit sworn 12 October 2009 par 7; Affidavit of Madeleine Pereira, Annex A, pars 8,13

11. But for one piece of contradictory evidence, there is little doubt about the past exposure of the children to the domestic violence between their parents.

12. Curiously, the respondent recently reported to her treating psychologist that:[23]

    “The children never witnessed any of the physical violence that occurred between them (the parents)…”

    [23] Affidavit of  Ms S

13. That cannot be so. As already mentioned, the father himself confessed to officers of the Department that the children had been present when he “whacked” the respondent.

14. The respondent reported the same thing to the Department. She told the officers:[24]

    “…there is family violence going on in the home to which the children frequently witness (sic)”

    [24] Respondent’s Affidavit, Annexure B, page 11

15. There are also several references within the Department file to the indirect involvement of the child L in the assault committed by the father upon the respondent in May of 2009.[25]

    [25] Respondent’s Affidavit, Annexure B, pages 4, 7 and 23.

16. The respondent gives evidence in her affidavit of some instances where one or both of the children were present when she was assaulted by the father.[26]

    [26] Respondent’s Affidavit, pars 37, 39, 43, 50 and 56.

17. Notwithstanding the curious denial by the respondent to her psychologist, I draw the conclusion that the children have been witness to at least some of the hostile conflict between their parents.  Needless to say, it is psychologically harmful for them to be exposed to that conflict.

18. Apart from the inadvertent involvement of the youngest child in the violent incident between the respondent and father in May 2009, there is no other evidence of the children being exposed to physical danger.

19. The respondent reported to her psychologist that the children were never physically assaulted by the father.[27]

    [27] Affidavit of Ms S

20. I therefore conclude that there is little or no risk of the children being exposed to physical harm if they return to New Zealand.

21. The evidence warrants a finding that a risk does exist that the children will be exposed to psychological harm in a joint household with the respondent and the father, through witnessing domestic violence between their parents. Those same circumstances would equally place the children in an intolerable situation.

22. However, since I have already concluded that a resumption of cohabitation between the respondent and father is improbable, I am not satisfied that the risk of exposure of the children to domestic violence, and consequential psychological harm, upon return to New Zealand is properly characterised as a “grave” risk. The same may be said of their placement into an intolerable situation.

23. Having regard to their volatile history, it is still a risk that domestic violence could erupt between the respondent and father even if they maintain separate households in relative proximity to one another, but it is not a “grave” risk. Even though I do not accept that the father’s participation in a domestic violence rehabilitation course has been an epiphany for him, I am persuaded by the evidence that he has acquired some level of insight into the destructive nature of his past violent conduct towards the mother and the deleterious effect of that upon the children.

24. In the absence of proof of “grave” risk, reg 16(3)(b) is not engaged.

Respondent’s psychological health

1. I have already extracted portions of the evidence adduced by the respondent’s psychologist about the status of the respondent’s psychological health.

2. Two aspects of the psychologist’s evidence are quite clear. Firstly, the respondent has already made considerable progress with the improvement of her depressive symptoms. Secondly, provided the respondent continues her therapy, her psychological health is really only susceptible to deterioration by reconciling her relationship and resuming cohabitation with the father.

3. There is no rational basis to doubt the efficacy of the psychologist’s opinion on those aspects, notwithstanding my disinclination to repose weight in other aspects of the psychologist’s evidence. It is readily understandable how the respondent’s adverse psychological symptoms may have abated with her receipt of therapy, and that her continued improvement might really only be spoiled by her return to the conditions which initially caused her symptoms.

4. The psychologist opines that, should the respondent resume her relationship with the father in New Zealand:[28]

   “…past relational and abusive patterns are likely to re-present, and it is likely that her (the respondent’s) depressive and trauma symptoms would escalate. If this was to occur, her ability to protect herself, and her children, from violence would be impacted and could potentially diminish.”

   [28] Affidavit of Ms S

5. For reasons already explained, I find that the respondent will probably not reconcile her relationship and resume cohabitation with the father.

6. It follows that the respondent’s psychological health is not likely to deteriorate, and in that case, her parenting capacity is not liable to be compromised.

7. By reason of those findings, the children will not be at risk of physical or psychological harm or of being placed in an intolerable situation as a consequence of any impingement of the respondent’s parenting capacity. Alternatively, I am not satisfied that any such risk could not be properly characterised as “grave”.

8. Accordingly, reg 16(3)(b) is not engaged.

Conclusions

1. The respondent has failed to prove to my satisfaction that there is a grave risk that the return of the children to New Zealand in her care would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

2. In those circumstances the Court is mandated by the Regulations to order that the children return to New Zealand.

3. However, the Court is vested with discretion as to the terms on which the return order is made (reg 15). The Court is expressly empowered to make any orders considered appropriate to give effect to the Convention on the Civil Aspects of International Child Abduction, and to include in any such orders any conditions that the Court considers appropriate.

4. It will be a condition of the return order that the children return in the care of the respondent. As has been mentioned, even the applicant contends for that.

5. The issue of domestic violence would be a pre-eminent issue in parenting proceedings contested between the respondent and the father under the Family Law Act in this Court. It would likely be so in parenting proceedings before a New Zealand Court.

6. Although a conclusion has been reached that there is no grave risk of the children’s exposure to domestic violence upon the respondent’s return with them to New Zealand, that does not of course equate to a finding that there is no risk at all.

7. In order to militate against the prospect of the respondent being subjected by the father to domestic violence upon her return to New Zealand, and the children being exposed to that violence, orders should be made to ensure (as far as is possible) against that eventuality. It will therefore be a condition precedent to the return of the children with the respondent to New Zealand that the father actually commence parenting proceedings in New Zealand, and that in the context of those proceedings he obtains an injunctive order or proffers an enforceable undertaking for the personal protection of the respondent. The terms of the injunctive order required will also decrease the prospect of a resumption of cohabitation between the respondent and father, about the chance of which the respondent remains apprehensive.

8. In those circumstances, should the father comply with the conditions precedent, by the time the respondent and children arrive in New Zealand, she will be a party to existent parenting proceedings concerning the children, and she will have the comfort of an enforceable restraint upon the father protecting her from domestic violence.

9. The respondent will then be free to conduct the pending parenting proceedings as she sees fit, which could conceivably include her making an application for interim orders that the children live predominantly with her, and her proposing that she be able to ultimately re-locate to Australia with the children. Any such parenting proposals will be evaluated by the New Zealand Court.

10. The father has adduced evidence that he will meet the costs of the return of the children to New Zealand.[29] In final submissions, the applicant supplemented that evidence by informing the Court that the father would also meet the cost of the respondent returning to New Zealand with the children.

    [29] Father’s affidavit sworn 12 October 2009 par 42; Affidavit of Madeleine Pereira, Annex A, par 25

11. The father is in full-time employment and he owns real property in W. The financial circumstances of the respondent, I impute, are parlous. She presently lives with her father. She is not gainfully employed. She was eligible for a grant of legal aid in these proceedings.

12. The father should bear the cost of the return travel of the respondent and children to New Zealand. It will be a condition precedent of the return order that he do so.

13. The order requires the father to fund the children’s return with the respondent to Auckland. That is the airport from which the respondent departed with the children,[30] and is the international hub of New Zealand.

    [30] Father’s affidavit sworn 12 October 2009 par 23

14. In the event that the father complies with the conditions precedent, then the respondent shall travel with the children back to New Zealand without undue delay. Other interlocutory orders already made by the court on 23 November 2009, in the nature of restraints and injunctions, will need to be discharged to permit the return order to operate.

15. In the event that the father fails to comply with the conditions precedent then the proposed return order will lapse and the Application for the return order made by the applicant will be dismissed.

16. The father needs to know of the conditions precedent, otherwise he cannot fulfil his obligations to ensure the return of the children to New Zealand. The applicant needs to serve a sealed copy of the orders upon the father expeditiously.

17. Similarly, the Australian Federal Police need to be aware of the orders, particularly in light of the interlocutory injunctive orders previously made on 23 November 2009, a sealed copy of which was also to be served on the AFP. Leave is granted to the parties to serve a sealed copy of the orders upon the Australian Federal Police.

18. Finally, liberty is granted to the parties to apply on short notice to re-list the matter before the Court if further procedural orders are necessary to facilitate the return of the children to New Zealand in fulfilment of the intention of these reasons.

I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  12 February 2010