Andrews v Buckley

[2023] NZHC 2372

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2023-454-27

[2023] NZHC 2372

IN THE MATTER OF

an Appeal from a Decision of the Family Court at Palmerston North

UNDER THE

Care of Children Act 2004, ss 105, 106, and

143

BETWEEN

ANDREWS

Appellant

AND

BUCKLEY

Respondent

Hearing:

16 August 2023

Appearances:

J Sutton and A Strang for Appellant

D D Vincent and N A A Patje for Respondent C Davidson Lawyer for Child (via VMR)

Judgment:

29 August 2023

JUDGMENT OF McQUEEN J

ANDREWS v BUCKLEY [2023] NZHC 2372 [29 August 2023]

Table of Contents

Para Nos

Introduction[1]

Background[2]

The Convention and its implementation in New Zealand law  [4]

Family Court proceedings[19]

Ms Andrews[22]

Mr Buckley[39]

Mr Buckley’s mother[56]

Section 133 report[57]
Lawyer for the Child in the Family Court[71]

Family Court judgment[72]

Approach to appeal  [83]

Issues on appeal[88]

Analysis[92]

Submissions for Ms Andrews[107]

Submissions for Mr Buckley[115]

Submissions by the Lawyer for the Child[120]
General approach to Convention matters[123]
Relevance of concealment and deception[128]
Is Thomas settled in New Zealand?[144]
Exercise of the discretion[149]

Result[163]

Costs[164]

Introduction

[1]                 The appellant (Ms Andrews) and the respondent (Mr Buckley) are the parents of Thomas, their 12 year old son.1 Ms Andrews appeals against the decision of Family Court Judge Broughton on 5 April 2023 to decline her application for an order to have Thomas returned to Australia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the Convention).2 Ms Andrew’s appeal is brought

1      The names of the parties and their son have been anonymised following consultation with counsel as to the names to be used.

2      [Andrews] v [Buckley] [2023] NZFC 3350 [Decision under appeal].

pursuant to the Care of Children Act 2004 (the Act), which incorporates the Convention into New Zealand law. Ms Andrews seeks an order that Thomas be returned to Australia.

Background

[2]                 The following is a brief summary of the factual background, drawn from the Family Court judgment:3

[3][Thomas] was born in New Zealand, but moved to Australia with [Ms Andrews] and [Mr Buckley] in early 2013. In late 2013, the parties separated. Shortly after, the family moved to New Zealand. In early 2014, the family relocated back to Australia.

[4]In 2015, [Mr Buckley] and his  mother  […]  took  [Thomas]  to  New Zealand without [Ms Andrews’] consent. Following a successful Hague Convention application, [Thomas] was returned to Australia.

[5]In 2018, [Mr Buckley] again took [Thomas] to New Zealand without [Ms Andrews’] consent, and in breach of an Australian court order. They returned to Australia later that year.

[6]In 2020, [Mr Buckley] took [Thomas]  to  China,  again  without  [Ms Andrews’] consent. While [Thomas] was in China, Ms Andrews had video calls with him once a month for around 30 minutes. Those calls were supervised by [Mr Buckley]. While in China, [Mr Buckley] says he lost [Thomas’] Australian passport.

[7]In 2021,[Mr Buckley] took [Thomas] from China to New Zealand, without [Ms Andrews’] consent or knowledge. She did not discover this until August 2022, when, during [a] phone call, she deduced that [Thomas] was not in China due to his unseasonable clothing. She promptly filed a without notice application for orders preventing [Thomas’]   removal   from   New   Zealand.   At   this   juncture, [Mr Buckley] then ceased facilitating video contact between [Thomas] and his mother.

[8]In November 2022, [Ms Andrews] applied for orders to return [Thomas] to Australia. The same month, she flew to New Zealand to see [Thomas]. She states that she was not once left unsupervised with [Thomas].

[3]Further factual details are discussed later in the judgment, as necessary.

3      Above n 2.

The Convention and its implementation in New Zealand law

[4]                 The Convention was adopted by the Hague Conference on Private International Law on 25 October 1980. New Zealand became a party to the Convention with effect from 1 August 1991. Australia, but not China, is also a party to the Convention. The summary below draws on the description given by the Court of Appeal in LRR v COL.4

[5]                 The rationale for adoption of the Convention is summarised in its preamble, which records:

The States signatory to the present Convention,

Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,

Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions –

[6]Article 1 sets out the objects of the Convention, which are:

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

(b)to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

[7]                 Article 3 provides that the removal or retention of a child is considered wrongful where it is in breach of a person’s rights of custody under the law of the State in which the child was habitually resident, and at the time of removal or retention those rights were actually exercised. The term “rights of custody” is defined in art 5 to include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.

4       LRR v COL [2020] NZCA 209, [2020] 2 NZLR 610 at [35]–[42].

[8]                 Chapter 3 of the Convention provides for the return of children who have been wrongfully removed from a Contracting State, or wrongfully retained away from a Contracting State. The Convention seeks to ensure the prompt return of an abducted child to the child’s State of habitual residence, unless one of the prescribed exceptions applies and return is not appropriate. Article 11 requires the judicial and administrative authorities of Contracting States to act expeditiously in proceedings for the return of children.

[9]                 Articles 12 and 13 contain the relevant operative provisions of the Convention for present purposes. They are implemented in New Zealand by ss 105 and 106 of the Act. Section 105 contemplates applications  for  return  of  a  child  abducted  to  New Zealand. It states:

(1)An application for an order for the return of a child may be made to a court having jurisdiction under this subpart by, or on behalf of, a person who claims—

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

(b)that the child was removed from another Contracting State in breach of that person’s rights of custody in respect of the child; and

(c)that at the time of that removal those rights of custody were actually being exercised by that person, or would have been so exercised but for the removal; and

(d)that the child was habitually resident in that other Contracting State immediately before the removal.

(2)Subject to section 106, a court must make an order that the child in respect of whom the application is made be returned promptly to the person or country specified in the order if—

(a)an application under subsection (1) is made to the court; and

(b)the court is satisfied that the grounds of the application are made out.

[10]              Section 106 provides grounds on which the court may refuse to order the return of the child. It states:

(1)If an application under section 105(1) is made to a court in relation to the removal of a child from a Contracting State to New Zealand, the court may refuse to make an order under section 105(2) for the return

of the child if any person who opposes the making of the order establishes to the satisfaction of the court—

(a)that the application was made more than 1 year after the removal of the child, and the child is now settled in his or her new environment; or

(b)that the person by whom or on whose behalf the application is made—

(i)was not actually exercising custody rights in respect of the child at the time of the removal, unless that person establishes to the satisfaction of the court that those custody rights would have been exercised if the child had not been removed; or

(ii)consented to, or later acquiesced in, the removal; or

(c)that there is a grave risk that the child’s return—

(i)would expose the child to physical or psychological harm; or

(ii)would otherwise place the child in an intolerable situation; or

(d)that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate, in addition to taking them into account in accordance with section 6(2)(b), also to give weight to the child’s views; or

(e)that the return of the child is not permitted by the fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.

[11]              The Act requires a court to which an application is made under s 105 to give priority to the proceedings so far as practicable, to ensure they are dealt with promptly.5

[12]              The need for promptness of return where an application is made out addresses the need to avoid the possibility of a child becoming settled following a wrongful abduction, which as will be seen below, can generate significant issues, particularly where an abducting parent has taken steps to conceal their whereabouts. Prompt return is seen as deterrent of wrongful removals, and generally in the best interests of the child.6 As already noted, the need for promptness also means that generally, an

5      Care of Children Act 2004, s 107(1).

6      LRR v COL, above n 4, at [76]–[77].

application for return is dealt with on the basis of submissions from counsel and affidavit evidence only.7 That was how the Family Court hearing in this case proceeded—there was no cross-examination despite some conflicting evidence from the deponents, in particular in the affidavits made by Ms Andrews and Mr Buckley.

[13]              The second prong of the Convention’s objective relates to the principle that disputes over care and control of children should be determined in the courts of the country of the child’s habitual residence.8 An abducting parent should not be able to avoid the laws of the country in which their child is habitually resident, or avoid orders made there, through abduction.

1. It is also convenient to set out s 4 of the Act here:

(1)The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—

(b)in the administration and application of this Act, for example, in proceedings under this Act; and

(b)in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.

(2)Any person considering the welfare and best interests of a child in his or her particular circumstances—

(a)must take into account—

(i)the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time; and

1. the principles in section 5; and

   (b)may take into account the conduct of the person who is seeking to have a role in the upbringing of the child to the extent that that conduct is relevant to the child’s welfare and best interests.

   (3)It must not be presumed that the welfare and best interests of a child (of any age) require the child to be placed in the day-to-day care of a particular person because of that person’s gender.

(4)This section does not—

(a)limit section 6 or 83, or subpart 4 of Part 2; or

7      See Basingstoke v Groot (2006) 26 FRNZ 707, [2007] NZFLR 363 (CA) at [39]–[40].

8      Robinson v Robinson [2020] NZHC 1765 at [32].

(b)prevent any person from taking into account other matters relevant to the child’s welfare and best interests.

[15]              Subpart 4 of pt 2 of the Act implements the Convention into New Zealand law. As such, the effect of s 4(4) is that the principles contained in s 4 (including the paramountcy principle) do not limit a court’s discretion when exercising powers pursuant to the provisions contained within subpt 4 of pt 2 of the Act.9 However, as discussed below, the welfare and best interests of a child remain at the forefront when the court considers an application for return under the Convention.

[16]              Subject to the grounds for refusal contained in s 106, a court must make an order that a child be returned promptly to the person or country specified in the order if the court is satisfied that the grounds of an application under s 105 are made out. However, if any of the grounds contained in s 106 are also made out, the court has a discretion to refuse to make an order for the return of the child.

[17]              The grounds for refusal contained in s 106 are circumstances in which the Convention identifies that the return of a child to their State of habitual residence may not be appropriate, because return would be contrary to their best interests. As the Court of Appeal has stated:10

[79] It cannot be emphasised too strongly that the exceptions set out in Article 13 are as integral to the scheme of the Convention as the Article 12 provision for prompt orders for return. The circumstances in which the Convention does not require an order for return of the child are carefully circumscribed. It is not the function of the requested State to conduct a wide- ranging inquiry into the best interests of the child. But the prompt and focused inquiry required by the provisions of the Convention is designed to ensure that the outcome does serve the interests of the particular child.

[18]              There is a shifting onus of proof in Convention proceedings.11 An applicant has the onus of proof in respect of the jurisdictional grounds contained in s 105. The onus then shifts to the respondent to prove that any of the s 106 grounds apply. This is sometimes described as establishing an “exception” or “defence” under s 106. The standard of proof is the balance of probabilities.

9      See Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289.

10     LRR v COL, above n 4. See also Simpson v Hamilton [2019] NZCA 579 at [46]–[47].

11     See Basingstoke v Groot, above n 7; and Secretary for Justice v HJ, above n 9.

Family Court proceedings

[19]              Ms Andrews discovered that Thomas and Mr Buckley were in New Zealand in August 2022. She immediately sought and obtained orders preventing Thomas’ removal from New Zealand and then applied to the Family Court for an order for Thomas to be returned to Australia.

[20]              Affidavits from Ms Andrews, Mr Buckley and Mr Buckley’s mother (Thomas’ grandmother) have been filed in this proceeding. Expert evidence from Mr  Jie (Jerry) Yu, a lawyer qualified in both China and New Zealand, was filed on behalf of Ms Andrews to provide an opinion on the legal difficulties for Ms Andrews in travelling to China following Mr Buckley’s removal of  Thomas  to  China  in  March 2020, and on the legal issues in relation to removing a child from China. I set out the affidavit evidence from Ms Andrews, Mr Buckley, and Mr Buckley’s mother, as well as the s 133 report prepared in the Family Court, prior to summarising the Family Court’s judgment.

[21]              I note that the allegations by the parties as to negative behaviour by either of them (in relation to each other or Thomas) did not feature in the case as argued before me and accordingly it has not been necessary to make specific factual findings in relation to that evidence (nor indeed to refer to it beyond as background).

Ms Andrews

[22]              Ms Andrews confirms that she is an Australian citizen. Ms Andrews explains that she and Mr Buckley commenced their relationship in China around 1999 and for a period they maintained a long-distance relationship while he was in New Zealand for one year, and then in Australia for two years. Ms Andrews and Mr Buckley married in December 2005. Mr Buckley then returned to Australia and Ms Andrews followed him a year later. Over the following several years they moved back and forth between New Zealand and  Australia  and  also  travelled  back  to  China  to  visit  family.  Ms Andrews says that she and Mr Buckley separated in October 2013 but continued living together until February 2018. They divorced in November 2018.

[23]              Ms Andrews  says  that  Thomas  was  born  on  14 November   2011   in New Zealand. She confirms that Thomas is a dual New Zealand and Australian citizen. The family moved to Australia in 2013 when Thomas was about two  years old.     Ms Andrews comments on relationship difficulties between her and Mr Buckley including in relation to having another child, but I do not need to set out details of this.

[24]              Ms Andrews says that they permanently relocated to Australia in April 2014. This was in part because Mr Buckley wanted to ensure that his mother could acquire permanent residency in Australia. This was achieved in 2015, and Mr Buckley’s mother came to Australia in September of that year.

[25]              Ms Andrews discusses the first time  that  Mr Buckley  took  Thomas  to  New Zealand without her consent. This was in October 2015. She made an application for his return and Thomas was duly returned in December 2015.

[26]              Ms Andrews explains that because Mr Buckley and his mother wanted to apply for permanent residency in New Zealand, they were required to spend six months out of the two years prior to the application in New Zealand. Therefore, at the end of 2016, Mr Buckley travelled to New Zealand and lived there for six months while his mother lived with Thomas and her in Australia. Ms Andrews says that at the end of the six months, Mr Buckley again began to pressure her to move back to New Zealand. She said she realised that he had no interest in resuming a relationship with her and that he simply wanted her consent to take Thomas to New Zealand, knowing that she would not give that consent unless she was also moving with him. Ms Andrews said that she decided, while Mr Buckley took Thomas on a holiday to China, that the move to New Zealand was not the right thing for Thomas or the family. She says Mr Buckley was angry about this.

[27]              In February 2019 Mr Buckley took Thomas to New Zealand. Ms Andrews said that she told him if he did not return Thomas to Australia, she would make another application for his return as she had done in 2015. She says he pressured her to allow them to spend two weeks in New Zealand on the basis that they would return to Australia after that. Mr Buckley and Thomas did return to Australia later in February. At this point a shared care arrangement for Thomas was agreed between Ms Andrews

and Mr Buckley whereby he would spend four nights per week with Ms Andrews and three nights per week with Mr Buckley.

[28]              Ms Andrews describes Thomas’ routine in Australia, including going to school and various extra-curricular activities, during which he made many friends.

[29]              Ms Andrews describes in some detail what occurred when Mr Buckley took Thomas from Australia to New Zealand and to China, without her consent.

[30]              Mr Buckley had spoken to her about his desire to go to China in 2020, because of his concerns that it was dangerous in Australia given the COVID-19 pandemic. Ms Andrews explains that shortly after Mr Buckley and Thomas left for China in March 2020, both Australia and China closed their international borders meaning she was unable to travel to China and they were unable to return to Australia. Ms Andrews understood that Mr Buckley and Thomas were living at Thomas’ paternal grandparents’ house. Ms Andrews asked Mr Buckley when they would be returning to Australia and says that he began to ignore her attempts to communicate to him. She says that Mr Buckley limited her contact with Thomas to a weekly hour-long online game through a chat platform, which involved essentially a phone-call.

[31]              It was in August 2022 when Ms Andrews noticed that Thomas was wearing two layers of clothes, which she thought was unusual as it was supposed to be        30 degrees in China. She says that she asked him why he was wearing so many layers and then the video call suddenly ended. Thomas then called back a short time later with a tee-shirt on, saying  he  had  been  too  hot  before  and  needed  to  change. Ms Andrews became suspicious of this behaviour and investigated the location of the IP address, discovering that it was from a New Zealand mobile provider. Ms Andrews then made a successful without notice application for orders preventing Thomas’ removal from New Zealand. She says that after Mr Buckley was served with this order, he stopped facilitating contact between her and Thomas.

[32]              Ms Andrews also records that Mr Buckley only told her some time later that he had married another woman in early 2021 and that they had been living with Thomas. She expresses her shock to hear that Thomas was living with a person she

did not know at all. She also said that Mr Buckley told her that they were separating. Ms Andrews also outlines what she describes as Mr Buckley’s abusive and controlling behaviour in relation to her. As noted above, it is not necessary for me to set out these allegations in detail.

[33]              Ms Andrews says that Mr Buckley has limited her phone calls with Thomas and, at least as at November 2022, was only permitting 10 text messages per week.

[34]              Ms Andrews confirms her strong desire to re-establish significant contact with Thomas and her willingness and ability to support him financially, physically and emotionally in Australia. She says that Mr Buckley could also return to Australia as he is an Australian citizen and is a self-employed share trader. She says that his mother is also eligible to live in Australia. Ms Andrews says that if Mr Buckley did not come to Australia, she is able to care for Thomas on a fulltime basis. She expresses her wish for Thomas to be returned to Australia as soon as possible in order to minimise the already significant disruption to his life, the negative impact on his development, and the deterioration in her relationship with him. She considers that relocating him to Australia will enable her to support his well-being in a way that outweighs any disruption in the move, as he will be able to integrate in the community, including the local Chinese community, and take up the activities he did while living in Australia. She also says he has school friends in Australia. She confirms that she wants Thomas to have a relationship with his father and is willing to facilitate that. She says she believes it is better for Thomas to be in her care because she would take a fairer approach to sharing contact with Mr Buckley. She says she would take Thomas’ wants into account, unlike the current situation where Mr Buckley makes all the decisions around contact and severely limits their contact.

[35]              Ms Andrews also says that she does not want to live in Palmerston North. She says she has her work, friends and whole life settled in Australia for years. She says it is Mr Buckley who keeps removing Thomas from any place that they settled.

[36]              She says that Thomas has never said directly to her that he doesn’t want to come back to Australia, rather it is always Mr Buckley who has said this to her in front

of Thomas. She considers that Mr Buckley removed Thomas from Australia for his own interests.

[37]              Ms Andrews says she is no longer a New Zealand permanent resident as those papers were in her Chinese passport which she gave up when she acquired an Australian passport.

[38]              Ms Andrews says that even when she visited New Zealand in November 2022, Mr Buckley did not allow her to spend time with Thomas alone. She says she has not been able to talk freely with her son for nearly three years. She says this demonstrates Mr Buckley’s controlling and manipulating nature as she says was demonstrated during their marriage.

Mr Buckley

[39]              Mr Buckley explains in his affidavit that he is living with Thomas, his mother and his new wife in Palmerston North, in a home owned by him and his mother. He confirms that he is entitled to live in New Zealand pursuant to a permanent resident visa.

[40]              Mr Buckley says that the Palmerston North home was bought in 2017 on the understanding that Ms Andrews agreed to move to New Zealand with him, his mother and Thomas but then she changed her mind at the last minute. He says that he has wanted to live in New Zealand for a long time and had many discussions with       Ms Andrews about that.

[41]              Mr Buckley says that Thomas is settled and happy in New Zealand and for the first time in his life, “we are looking towards a settled, long-term future”. He believes it will be best for Thomas if he can spend his teenage years in New Zealand. He says that Thomas is very happy and has expressed to him in very strong terms that he does not want to go back to Australia.

[42]              Mr Buckley says that he would support Ms Andrews financially to visit Thomas one week in each school holiday, if Thomas remains in New Zealand. He also

says that if she moves to New Zealand, he would be happy to discuss a shared care arrangement with her.

[43]              Mr Buckley does not  agree  that  he  and  Ms Andrews  separated  in  October 2013, rather he says the relationship continued until he first took Thomas to New Zealand in October 2015. He does agree that they continued to live together until February 2018 and were then divorced.

[44]              Mr Buckley says that Thomas does not currently hold a valid Australian passport as this was lost while they were in China.

[45]              Mr Buckley says that his mother won the review into her Australian permanent residency application in August 2015 and came to live in Australia with them in September 2015.

[46]              In relation to the first order for return in late 2015, Mr Buckley says he admits he could have handled the situation differently by communicating with Ms Andrews about what he wanted and trying to make the decision with her. He says that was a difficult time for him as they were both very stressed and their marriage was falling apart.

[47]              He says that  in  June 2016  he  and  Ms Andrews  discussed  moving  to  New Zealand and that she agreed to move if they could purchase a home to live in as a family. He says that in December 2016 he moved back to New Zealand and his mother went to Australia to live with Ms Andrews and Thomas. The home in Palmerston North was purchased in April 2017.

[48]              Mr Buckley says that while he  was  in  China  and  around  January 2018  Ms Andrews said she had changed her  mind  and  no  longer  wanted  to  go  to  New Zealand to live. He says he was angry about this because of the massive investment he had made in moving to New Zealand. He says that he said he would take Thomas to New Zealand to see the home as planned and return with him after two weeks. When they returned to Australia, he arranged for a separate apartment in which he and his mother could live, and have Thomas during his time of caring for him. He

accepts that they had an agreed shared parenting arrangement with Ms Andrews at this time.

[49]              Mr Buckley says he  does  not  have  any  friends  in  Australia,  only  in  New Zealand and China. He accepts that Thomas had an active life in Australia and says that he continues that in New Zealand.

[50]              Mr Buckley confirms that he was very scared of what would happen when COVID-19 arrived in Australia because he did not trust the Australian Government to be able to deal with it. He says that while he and Thomas were in China Thomas attended school. He says that he told Ms Andrews where they were living and invited her to join them. He denies that he ever restricted contact between Ms Andrews and Thomas. He says that Thomas’ Australian passport was lost in March 2021 and that the Australian Passport Office in Shanghai told him that he could not apply for a new passport without both Thomas’ parents agreeing, and Ms Andrews did not agree to renew the passport. As a result, Thomas only had a New Zealand passport at that time. This meant that Thomas could not get a valid Chinese visa for him to stay in China and the police issued Thomas an “aliens exit—entry permit” which gave him 30 days in which to leave China.

[51]              Mr Buckley said that at this time “we decided to go to New Zealand because we had a home there and that is where Thomas wanted to live”. It took a long time to organise a spot in the managed isolation and quarantine facilities in New Zealand and they moved to New Zealand in November 2021. Mr Buckley says that Ms Andrews did not ask to have a video call with Thomas from February 2022 to August 2022. He says that he did not prevent conversations between Thomas and his mother but that he told Thomas that Ms Andrews wanted him to go back to Australia and that Thomas was very upset by this and angry at her, and as a result when she asked to speak to Thomas, Thomas said he did not want to talk to her.

[52]              Mr Buckley explains that he married his new wife in January 2021 and says that Thomas and she get on very well.

[53]              Mr Buckley denies Ms Andrews’s allegations of controlling and abusive behaviour during their relationship.

[54]              Mr Buckley says that Thomas asked him to stay with him during the time he spent with Ms Andrews when she visited New Zealand in November 2022.

[55]              Mr Buckley says that Thomas has told him many times he prefers living in New Zealand. Mr Buckley maintains that Ms Andrews’ treatment of Thomas has been bad at times. It is not necessary to set out these allegations in any detail (which are rejected by Ms Andrews, in any event).

Mr Buckley’s mother

[56]              Mr Buckley’s mother has provided an affidavit. She confirms that she lives in New Zealand on a permanent resident’s visa and that she jointly owns the home in Palmerston North. She confirms that she loves Thomas very much and thinks strongly that it is best for him to stay in New Zealand. She says he has a very good life in New Zealand. She also says that Ms Andrews is always welcome to visit, if she would like to stay in Australia. She says, if necessary, she will help Thomas have contact with his mother and that she would help Ms Andrews set herself up in Palmerston North if she wishes.

Section 133 report

[57]              The Family Court directed that a report be prepared pursuant to s 133 of the Act. Such a report can cover a number of matters. The report commissioned for the present matter was prepared to:

(a)assess Thomas’ relative maturity;

(b)having regard to Thomas’ age, cognitive ability and maturity, comment on the potential impact of the court making an order contrary to his views;

(c)assess the extent to which Thomas’ views may have been influenced by either Ms Andrews or Mr Buckley; and

(d)provide any comments relevant to the court’s determination as to the weight to be given to Thomas’ views.

[58]              The report was prepared by Dr Kate Tappenden, a registered psychologist. It is dated 16 January 2023. Dr Tappenden interviewed Mr Buckley, Ms Andrews, and Thomas, as well as observing  Thomas  with  each  of  his  parents.  She  also  met Mr Buckley’s mother, on the occasion of observing Thomas at home.

[59]              Dr Tappenden records that Thomas’ overall presentation was that of a normal boy aged 12. Thomas discussed enjoying his school activities, including playing sports with his friends. He had attended school camp and had no difficulty being away from his father. He was excited to be attending intermediate school. Thomas reiterated that he enjoyed living in China but that he could not remember much about his life in Australia, given that it had been a long time ago.

[60]              Dr Tappenden observed Ms Andrews and Thomas talking on a video call. She records that Thomas was unsure what they would talk about, and she considered that this implied that Thomas has had limited contact with his mother that has not been monitored by Mr Buckley. Thomas did not speak to his mother with ease initially but opened  up  when  discussing  their  memories  of  living  together  in  Australia.     Dr Tappenden recorded Ms Andrews as expressing genuine warmth and affection towards her son in a friendly manner. After the video call Thomas told Dr Tappenden that he would like to see his mother more but indicated that he did not want to be removed from New Zealand.

[61]              Dr Tappenden’s impression of Mr Buckley was of a nervous and guarded father, requiring precise details of their interview and her visit to Mr Buckley’s home. She says that Mr Buckley has closely monitored the manner in which Thomas can contact his mother, and what may be discussed. She says that Mr Buckley has instilled in Thomas a fear of dogs, and that Mr Buckley is present in all aspects of Thomas’ life, including extra-curricular activities. She notes that Thomas will require greater

individuation from Mr Buckley as he gets older. Thomas’ grandmother appeared to Dr Tappenden to be a strong figure in Thomas’ life, and a source of secure attachment.

[62]              Dr Tappenden describes a series of allegations of violence against Thomas, reported by Mr Buckley to have been inflicted by Ms Andrews, in an affidavit before the Family Court. Dr Tappenden states in respect of these allegations:12

There appears to have been no external investigation into these allegations at the time or afterwards and the writer observed nothing in [Thomas’] presentation or responses to [Ms Andrews] to indicate fear of his mother. No Police report was made either regarding these serious allegations of what would, if veridical, constitute child abuse. During observations of [Thomas] with his mother, uncertainty borne of a strained relationship was present, but his reactions to her discussions of their shared activities whilst he was still living with her seemed genuine and warm, as was his subsequent affirmation that he would like to visit her.

[63]              Dr Tappenden also records Ms Andrews’ description of Mr Buckley as controlling and very single-minded.

[64]              Dr Tappenden notes that the constant moving between New Zealand, Australia, and China could have had a detrimental impact on Thomas’ sense of belonging through relationships with his peers. She notes that Thomas has had restricted opportunities to settle into a stable friendship group, as a result of his mobile childhood. Her view is that the greater level of social inclusion Thomas feels, the greater his wellbeing is likely to be.

[65]              Dr Tappenden states that Mr Buckley created a set of circumstances within which to realise a long held dream of living in New Zealand, and has pursued a strategy of establishing a suitable immigration status for the family that allows them to live in New Zealand. She points to the fact that Ms Andrews only realised that Thomas and Mr Buckley were in New Zealand from the clothes that Thomas was wearing while on a video call with him. Having deduced their location, Ms Andrews immediately made an application to have Thomas returned. Dr Tappenden says therefore that her delay cannot be attributed to a lack of desire for the return of her son. However, she says

12  I reiterate that no reference was made to these allegations by counsel during the appeal hearing,  and no attempt was made to argue that Thomas would not be safe in Ms Andrews’ care, were the Court to order as such. Mr Buckley instead has deposed that he will support contact between Thomas and Ms Andrews, notwithstanding his strong preference to remain in New Zealand.

also that the delay has allowed Thomas to become integrated into his peer-group and community. She explains that the demands on Thomas of the many moves in his life have been significant as he has had to process the moves within the incomplete neural development of a child. He will likely favour stability.

[66]              Dr Tappenden views Mr Buckley as forming an alliance with Thomas, and influencing him into believing that if he visited Ms Andrews in Australia, that she would prevent his return. She describes this as damaging, because:

For a young adolescent there are few things more terrifying than these outcomes and this fear, whether implanted implicitly by his father’s actions or explicitly inherited through things he has been told in the paternal home environment, has been a powerful motivator for him to resist the prospect of visits with her, and he even expressed caution and hesitation with regards to face to face contact with him in New Zealand.

This also made Thomas complicit in the avoidance of his mother’s discovery of his move to New Zealand.

[67]              Dr Tappenden assessed Thomas’ cognitive maturity as ‘age congruent’ but says that his decision-making processes are likely to be heavily influenced by choosing the place where he feels he belongs the most. This may result in him giving less weight to the long-term consequences of a decision. He may also prioritise stability over making decisions that would enable him to have a closer relationship with his mother. Were the court to make an order contrary to his expressed views, Dr Tappenden considers that Thomas will face disruption, identity reconstruction, and psychological and emotional turmoil at least in the short term. She observes that a decision made contrary to a child’s wishes has the potential to make the child feel disempowered and unheard by adults. Dr Tappenden says that a decision against Thomas’ wishes will likely be distorted through lenses of cognitive bias against the parent with whom the court is trying to promote contact. She notes that children between nine and eleven years old are particularly vulnerable to getting caught between their parents’ conflicts, are prone to taking sides, and are at greater risk of becoming alienated.

[68]              Dr Tappenden explains that Thomas’ additional cognitive maturity now will allow him to reformulate his beliefs with time and quality contact with Ms Andrews by providing opportunities to test any distorted beliefs and reformulate his schema of

his mother as an additional source of love and support. She says that this might be the ultimate goal behind his care and contact arrangements.

[69]              Dr Tappenden says that Thomas has aligned with his father and is hypervigilant about a perceived threat from his mother that she will abduct or hurt him. She considers that there is significant evidence to conclude that Thomas’ views have been materially and significantly influenced by his father. She notes also that although there is more at stake in terms of Thomas’ sense of belonging than if he was a younger age, he is not quite old enough to have the full cognitive resources to independently decide what is best for his long-term wellbeing.

[70]              Dr Tappenden explains that the greater level of social inclusion Thomas feels, the greater his wellbeing is likely to be.

Lawyer for the Child in the Family Court

[71]              Ms Davidson was appointed to represent Thomas in the Family Court. Prior to the Family Court hearing, Ms Davidson met with Thomas on his own to discuss the proceedings and hear his views. Thomas told Ms Davidson that he was aware that Ms Andrews did not want him to stay in New Zealand, but that was what he wanted to do. He stated that this was because he was born in New Zealand, and because he did not want to leave his friends or his school. He said that he “loves” his life in  New Zealand. Thomas said that he could not remember much of his life in Australia, and that his mother was mean to him. He recalls his parents arguing a lot. He sought reassurance from Ms Davidson that he would not have to return to Australia.

Family Court judgment

[72]              Ms Andrews’ application was heard on 2 February 2023 and judgment was given declining the application on 5 April 2023.

[73]              In her judgment, the Judge in the Family Court described the issues for determination as:13

13     Above n 2, at [9].

(a)Has Thomas been removed from a contracting state?

(b)Are the grounds of s 106(1)(a) and s 106(1)(d) of the COCA made out?

(c)Are Hague Convention proceedings bound by the best interests of the child under s 4 of the COCA?

(d)Should the Court exercise its discretion?

[74]              The first issue addressed by the Judge was whether Thomas was habitually resident in a contracting state prior to his removal. It was common ground that Thomas is now present in New Zealand, which is a contracting State, and that Ms Andrews was exercising custody rights at the time of his removal from Australia in 2020. The issue was whether the 20 months that Thomas had spent in China, prior to moving to New Zealand, meant that he was not habitually resident in a contracting State prior to his removal.14 As noted, China is not a contracting State to the Convention.

[75]              The Judge considered that Thomas was not habitually resident in China in the 20 month period between leaving Australia and arriving in New Zealand, and that the move to China was likely intended to be temporary by Mr Buckley.15 Though Thomas spent a significant period of time in China and appeared to have led a normal life for a child of his age, the Judge considered that Mr Buckley did not have a settled purpose in moving to China.16 While Thomas’ residence in China was reasonably constant and continual, it was not customary, owing to his wrongful removal from Australia. As such, the Court’s jurisdiction was engaged.17

[76]              The second issue addressed by the Judge was Mr Buckley’s contention that two grounds under s 106(1) were established. Mr Buckley argued that s 106(1)(a) was engaged as the application was made more than one year after Thomas’ removal and Thomas was settled in New Zealand. Mr Buckley also argued that s 106(1)(d) was engaged as Thomas objected to being returned to Australia, having attained an age and degree of maturity at which it is appropriate to give weight to his views.

14     Above n 2, at [27].

15 At [32].

16 At [31].

17     At [33]–[34].

[77]              The Judge considered that there was significant evidence to suggest that Thomas was settled in New Zealand, notwithstanding Mr Buckley’s deception and concealment.18 Her Honour was of the view that Mr Buckley’s deception and concealment did not negate Thomas’ settlement, but was rather relevant to the overall exercise of the Court’s discretion.19 The Judge also considered that Mr Buckley’s conduct was, by a slim margin, less egregious than the mother in Simpson v Hamilton, who had removed her child from Germany in breach of German court orders and taken a number of steps to conceal their whereabouts while in New Zealand.20 On that basis, the Judge considered that Thomas was settled in New Zealand, and that Ms Andrews’ application was made out of time, so that the ground in s 106(1)(a) of the Act was established.

[78]              As to Thomas’ objection to returning to Australia, the Judge stated: “His expression is stronger than a preference, it is sufficiently valid and reasonable, and relates to returning to Australia generally, rather than remaining in Mr Buckley’s care”.21 Based on Dr Tappenden’s report, her Honour was of the view that Thomas is of a sufficient age and maturity that weight ought to be given to his views, but that weight should be limited, given that his views are “significantly and materially influenced by Mr Buckley”.22 The Judge concluded that the ground under s 106(1)(d) was made out, but that limited weight should be given to Thomas’ objections.

[79]              As grounds under s 106(1) were established, the Judge also considered submissions made in respect of Thomas’ best interests.23 She stated:24

I consider that the issue at hand is a matter of settled law as per Secretary for Justice v HJ. The paramountcy principle does not limit the Court’s discretion under s 106. [Thomas’] best interests are still relevant, however, they cannot be the focus of the exercise of the Court’s discretion, nor act as a limitation to the assumption of return, as [Mr Buckley’s] counsel suggests. The role of the Court is to determine the appropriate forum for the consideration of [Thomas’] best interests to take place.

18     Above n 2, at [53].

19 At [53].

20 At [54].

21 At [71].

22     At [73]; citing White v Northumberland [2006] NZFLR 1105 (CA) at [43].

23     See Secretary for Justice v HJ, above n 9, at [40] and [48].

24     Above n 2, at [83].

[80]              Finally, the Judge turned to the exercise of the Court’s discretion. She first summarised that:25

To reiterate, I consider that two grounds for refusal under s 106(1) are established. [Ms Andrews’] application was made more than one year after [Thomas’] removal, and he is settled in New Zealand (s 106(1)(a)). [Thomas] objects to his return and is of an age and maturity at which it is appropriate to take his views into account, noting the comments made by Dr Tappenden’s [sic] that such views are substantially a product of [Mr Buckley’s] influence. Consequently, I place cautious weight to these views.

The fact that [Thomas] is settled in New Zealand is compelling. He has, by and large, a normal, settled life for a child. He is socially adjusted and attends schooling and extracurricular activities. He has healthy relationships with his extended family, particularly his paternal grandmother, who it appears, he has as strong attachment to.

[81]              Her Honour considered the circumstances of Thomas’ settlement, the circumstances of his removal, the harm that may occur were he to be returned to Australia, and other best interest matters supporting his return. She concluded that “[t]he reality is that remaining in New Zealand or returning to Australia will result in some form of harm to Thomas”.26

[82]She further stated that:27

I have laboured over this decision. When I weigh the welfare and best interests of the child against the significance of the general purpose of the Convention, I do not consider that the circumstances favour the discretion being exercised that [Thomas] return to Australia. His life (emotional and psychological) is rooted in New Zealand, despite the abhorrent behaviour of [Mr Buckley]. There is a real risk that further upheaval and change of environment may very well have a significantly negative impact on [Thomas].

It  is  important  to  note  that  this  decision  is  not  intended  to  reward   [Mr Buckley’s] deception and concealment. His conduct was wrong. However, I find a return to Australia would be contrary to [Thomas’] welfare and best interests.

Accordingly, [Ms Andrews’] application for an order to have [Thomas] returned to Australia is declined.

25     Above n 2, at [91]–[92].

26 At [94].

27     At [95]–[97].

Approach to appeal

[83]              Ms Andrews’ appeal is brought pursuant to s 143 of the Act, which provides that a party to a proceeding under the Act may appeal against a decision of the Family Court to refuse to make an order. The High Court Rules 2016 and ss 125 to 130 of the District Court Act 2016, with all the necessary modifications apply to such an appeal, which is a rehearing.28

[84]The function of an appellate court is as follows:29

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

(footnote omitted).

[85]In addition:30

No particular deference is required to the lower court for its factual findings. That is particularly so in Hague Convention proceedings, which are normally (as in this case) dealt with on affidavit evidence without cross-examination.

[86]              Lawyer for the Child was not initially appointed for the appeal. I concluded that it would assist me for counsel to be appointed to represent Thomas in the appeal. Ms Davidson kindly agreed to appointment, despite the request being made at a late stage. I asked Ms Davidson to file her written submissions from the Family Court hearing and indicated that I would find her assistance particularly helpful on the following two points:

28 Care of Children Act 2004, s 143(4).

29 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16]; applied in Summer v Green [2021] NZHC 3111 at [22]–[23]; and Cresswell v Roberts [2022] NZHC 1265.

30 Robinson v Robinson, above n 8, at [56].

(a)the legal relevance of a parent’s deception and concealment to the establishment that a child is settled under s 106(1)(a) of the Act and/or to the role of the paramountcy principle in Convention matters; and

(b)any aspect of Thomas’ welfare and best interests of particular importance to the exercise of the Court’s discretion.

[87]              Ms Davidson  has  provided  written  submissions  accordingly.   I   thank  Ms Davidson for her assistance.

Issues on appeal

[88]              Mr Sutton, counsel for Ms Andrews, submits that the Family Court judgment is wrong in fact and law. The specific grounds of appeal are:

(a)Thomas was not settled in New Zealand (and the Judge’s comparison to Simpson v Hamilton was flawed);31

(b)the Judge failed to properly exercise the discretion under s 106(1) of the Act; and

(c)the Family Court did not properly analyse the purpose of the Convention and the paramountcy principle.

[89]              For clarity, I record that there is no challenge to the Judge’s finding of jurisdiction pursuant to s 105 of the Act. Nor is there a challenge to the Judge’s finding pursuant to s 106(1)(d) that Thomas’ objection to being returned to Australia was established and that Thomas is of a sufficient age and maturity that weight ought to be given to his views, but that weight should be limited, given Mr Buckley’s influence on Thomas.

[90]The two broad issues for me to decide are:

31     Simpson v Hamilton, above n 10.

(a)whether   the    evidence    establishes    that   Thomas    is    settled    in New Zealand; and therefore the s 106(1)(a) exception is made out; and

(b)whether or not, properly exercised, the residual discretion in this case requires a return order to be made.

[91]              When addressing the nature and application of the residual discretion, I discuss matters arising in relation to both the ‘settled’ defence, and the ‘child objection’ defence. What is not revealed by describing the issues in this way, is how the concealment and deception that exists in this case should be taken into account. Questions arise as to its legal and factual relevance, and I address these in the discussion below.

Analysis

[92]              The starting point for my analysis is that s 106(1)(a) allows the Court to refuse to make an order returning Thomas to Australia if Mr Buckley can establish that the application was made more than one year after Thomas’ removal from a contracting state in which he was habitually resident, and that Thomas is settled in New Zealand.

[93]              As the Family Court’s findings that the application was made more than one year after Thomas’ removal from a contracting state in which he was habitually resident are not under challenge, the question is really whether Thomas is settled in New Zealand. If Thomas is settled in New Zealand the issue then becomes whether I should exercise my discretion to order his return to Australia nonetheless.

[94]              Before turning to the parties’ submissions, it is helpful to set the scene by reference to several cases of particular relevance.

[95]              The first is the Supreme Court decision in Secretary for Justice v HJ.32 HJ concerned an application by a father for the return of two young children to Australia, who had been taken to New Zealand by their mother. The Court unanimously refused to order their return on the basis that the children were settled in New Zealand. The

32     Secretary for Justice v HJ, above n 9.

focus of the Supreme Court was, for the most part, on what basis a court may exercise its discretion under s 106 of the Act, to refuse to order the return of a child.

[96]              The majority, comprising Blanchard, Tipping and Anderson JJ, considered that the decision whether to return a child who is found to be settled pursuant to s 106(1)(a) involved a ‘balancing exercise’, weighing the objectives of the Convention against the welfare and best interests of the child.33 The effect of this approach was that in some circumstances, an order for return might be made even though it was not in the best interests of the child, “so as to avoid the perverse incentive inherent in refusing to order return”.34 The Family Court Judge in the decision under appeal considered this approach to be “settled law”.35

[97]In HJ, Elias CJ dissented, and was instead of the view that:36

…once a ground for resisting mandatory return is made out, whether the children should be returned must be determined principally in accordance with their welfare and best interests, in application of s 4(1) of the Care of Children Act….. I see no conflict between the aims of the Convention and the welfare and interests of the child once a ground to refuse return is established.

[98]              The second relevant case is the Court of Appeal’s judgment in Simpson v Hamilton.37 That case involved the abduction of a child by her mother from Germany, and an application by her father to have her returned. The mother had travelled to New Zealand and effectively gone into hiding. Nearly two years had passed before the father discovered that they were living in New Zealand. The factual issues before the courts in that proceeding were similar to the present, in that the mother argued both that the child was settled, and that she had reached an age and degree of maturity such that it was appropriate to take her views into account. The father argued that the child could not be settled in the circumstances, and that her objection was unduly influenced by the mother. The issue of the effect of concealment upon settlement was squarely before the Court, as was the effect of the mother’s influence.

33     Secretary for Justice v HJ, above n 9, at [85]–[87] per Tipping J.

34     At [87] per Tipping J.

35     Above n 2, at [83]

36     Secretary of Justice v HJ, above n 9, at [3] per Elias CJ.

37     Simpson v Hamilton, above n 10.

[99]              The Court of Appeal considered that by the time of the hearing of the father’s application in the Family Court in August 2017, the child and mother had effectively been on the run since leaving Germany in November 2014.38 Throughout that period the child had changed schools and addresses multiple times, and her immigration status was on a precarious footing. The Court considered that the claim of settlement in New Zealand was built on concealment and deceit.39 Accordingly, the Court held that at the time of the Family Court hearing, the child was not settled in New Zealand.40

[100]          As to the child’s views, the Court of Appeal considered that she was influenced by her mother.41 The Court stated:42

In our assessment, Anna’s objection was vitiated by the undue influence of her mother and was founded on an entirely false premise. Anna understandably objected to being separated from her family, not to returning to Germany with them. We do not consider this exception was made out either.

[101]          Having concluded that neither grounds for refusal were made out at the time of the Family Court hearing, the Court of Appeal held that the Family Court had no discretion to decline to make an order for return.43 It nevertheless went on to conclude that, if that discretion had existed, the Family Court’s discretion should have been exercised to order return.44 However, as two years had passed between the Family Court decision and the Court of Appeal’s decision, and given an attempted abduction by the child’s father in New Zealand, the Court of Appeal declined to make an order returning the child to Germany because of the significant risks to the mental health and future development of the child.45

[102]          Counsel addressed me on how best to analyse the Court of Appeal’s approach in Simpson v Hamilton. It is obvious that the Court was deeply concerned about the delays that had occurred in the matter. Ms Davidson submitted that the Court, having concluded that no s 106 defence was made out at the time of the application to the

38     Simpson v Hamilton, above n 10, at [49].

39 At [53].

40 At [54].

41 At [62].

42 At [63].

43 At [64].

44 At [76].

45 At [84].

Family Court, went on to consider the changed circumstances between that time and the consideration of the appeal. Ms Davidson says that although the Court found that the child objection defence was not made out because of the mother’s undue influence on those views, it nonetheless gave weight to the child’s views due to her age and experiences (including her abduction by her father). Ms Davidson characterises this as establishing that even where a s 106 defence is not made out, the court continues to have a discretion to look further and assess whether return of the child is required as a matter of their best interests.

[103]          Mr Vincent, however, submits that the better view is not that there is an overarching discretion irrespective of the grounds in s 106, but rather that the Court of Appeal found that the settled child defence was made out at the time the Court was considering the case.

[104]          The final and most recent case to mention is the Court of Appeal’s decision in LRR v COL.46 Although Simpson v Hamilton and HJ were referred to by the Family Court Judge in her judgment, LRR v COL was not, although counsel informed me that the decision was before her. In LRR v COL, the Court of Appeal discussed HJ. Goddard J, writing for the Court, noted that the judgment of Blanchard, Tipping and Anderson JJ suggested that where an exception is made out, it may nonetheless be appropriate to exercise the s 106 discretion in favour of an order for return of the child, in order to deter future abductions.47 Goddard J explains that this observation was obiter, as in that case the Court unanimously declined to order the return of the child.48 Goddard J then said that:

More generally, we have some reservations about the suggestion that where an exception is made out under s 106, the interests of the particular child may nonetheless give way to the goal of deterring potential abductors in the future.49 That suggestion is in our view difficult to reconcile with the scheme of the Convention, with the UNCRC [United Nations Convention on the Rights of the Child], and with s 4 of the Act. We are attracted to the view expressed by Ellis CJ in Secretary for Justice v HJ that where the summary process contemplated by the Convention has been followed, and the Court finds that an exception is made out, the discretion must be exercised in the best interests of the child having regard to the circumstances that established

46     LRR v COL, above n 4.

47 At [97].

48 At [98].

49     See the observations of this Court in Smith v Adam [2007] NZFLR 447 (CA) at [12]–[14].

the exception.50 Applying s 4(1) in those circumstances would not limit the operation of the Convention. So s 4(4) does not preclude the application of   s 4(1).

[105]          The Court of Appeal was considering the return of a child in the context of the exception set out under s 106(1)(c)(ii), namely that return would expose the child to a grave risk of an intolerable situation. Despite this being a different exception to the one under consideration in the present case, the Court of Appeal’s re-statement (and in some minor respects clarification) of the principles that govern Convention proceedings in New Zealand, are plainly, in my view, of more general application.51 I discuss further below the significance of LRR v COL in the context of this case.

[106]          It is convenient now to summarise the parties’ submissions, as well as those of Ms Davidson.

Submissions for Ms Andrews

[107]          Mr Sutton submits that Thomas cannot be settled in New Zealand because  Mr Buckley has full control and influence over him. He says that Thomas has no independence, that the evidence shows that Thomas is heavily guided by Mr Buckley, and that Thomas is limited in the manner in which he may maintain a relationship with Ms Andrews. Mr Sutton submits that the Family Court Judge did not provide any explanation as to why Ms Andrews’ evidence was ignored, and failed to give sufficient weight to Dr Tappenden’s evidence.

[108]          Mr Sutton also says that while Thomas may have  adjusted  to  living  in  New Zealand, he is not settled because “the level of concealment and deception that he was involved with left him emotionally and psychologically unsettled”. Mr Sutton says that the Judge was wrong to consider that deception and concealment is not relevant to assessing whether Thomas is settled in New Zealand.

[109]          As to the Judge’s consideration of Simpson v Hamilton, Mr Sutton submits that the Family Court erred in distinguishing Mr Buckley’s conduct from the mother’s

50 Secretary of Justice v HJ, above n 9, at [27].

51 LRR v COL, above n 4, at [148]. See also Summer v Green [2021] NZHC 3111 at [37]; and [Summer] v [Green] [2022] NZCA 91 (In which an application for leave to appeal was subsequently declined); and Cresswell v Roberts [2022] NZHC 1265.

conduct in that case. Mr Sutton submits that the Judge did not provide adequate reasons for why Mr Buckley’s conduct was ‘less egregious’ than Ms Hamilton’s conduct. He says that the child in Simpson v Hamilton did not appear to be aware of the deportation risk, and so that was not a matter that could factor into an assessment of her state of settlement. He says also that the Judge failed to find that Mr Buckley’s behaviour “has had a hugely disruptive impact on Thomas and his psychological and emotional settlement in New Zealand”, or that his defence is entirely founded on concealment. He submits that Mr Buckley’s behaviour is tantamount to the behaviour of the mother in Simpson v Hamilton, and that if the Court accepts that Thomas is settled, he is only so because of Mr Buckley’s concealment. Mr Sutton also notes that Ms Andrews comes before the court with ‘clean hands’, in contrast to the father in Simpson v Hamilton.

[110]          Mr Sutton notes that Thomas has been abducted by Mr Buckley several times and submits that their relocation to New Zealand was engineered by Mr Buckley through allowing Thomas’ Australian passport to lapse. He says that Thomas’ life has been disrupted by abductions since 2015, and in relation to Ms Andrew’s discovery of Thomas’ presence in New Zealand that “[a] child that is unable to speak openly with their parent due to the risk of revealing their location cannot be said to be physically and emotionally settled in all the circumstances.” He submits that Thomas’ fear of being abducted or of being unable to move freely means that he is psychologically insecure in a manner inconsistent with the legal concept of settlement.

[111]          Mr Sutton submits also that the Judge did not consider the ‘non-tangible’ features of settlement, being the emotional and psychological characteristics of being ‘settled’. He accepts that Thomas has adjusted to life in New Zealand, but that he has not emotionally and psychologically settled. He submits that the Judge relied too much on physical indicators of settlement, such as:

(a)his immigration status;

(b)his father’s home ownership; and

(c)his social bonds and his ability to make friends.

[112]          Mr Sutton draws attention to the nature of Thomas’ home, in respect of which Dr Tappenden noted “it was difficult to ascertain whether the absence of furniture in the home was a symptom of not being quite certain regarding the longevity of his occupation of the property or whether it arose from a general spartan approach to home décor”. He also references her comments that Thomas was most animated when discussing his life in China.

[113]          Mr Sutton submits that the Court’s discretion should be exercised in favour of return, because that would be in Thomas’ best interests. Otherwise, further alienation and loss of attachment to Ms Andrews will occur. He says that Australian courts are best placed to determine what is in Thomas’ best interests in the longer term, and that any caution or hesitation on Thomas’ behalf is a result  of his  father’s  influence.  Mr Sutton says that the ongoing alienation of Thomas from his mother will have long term developmental risks and that the Family Court Judge did not consider his long term future.

[114]          Mr Sutton submits that even if the Court finds a return order is not in Thomas’ welfare and best interests, a return order should still be made, in reliance on the majority judgment in  HJ.  He  says  that  given  the  “repeat  abductor”  status  of  Mr Buckley, it is appropriate to order Thomas’ return to Australia.

Submissions for Mr Buckley

[115]          Mr Vincent, counsel for Mr Buckley, submits that it is clear on the evidence that Thomas meets the test for being settled in New Zealand on physical, emotional, and psychological bases. He submits that although issues of deception and concealment are relevant to the inquiry, the Family Court Judge was correct to find that the deception in Mr Buckley’s case was distinguishable from Simpson v Hamilton. Mr Vincent highlights that:

(a)Thomas was born in New Zealand;

(b)Thomas lives in a property owned by Mr Buckley and his grandmother, who are both permanent residents in New Zealand, and therefore his living situation is stable and secure;

(c)Thomas completed primary school and has now begun at intermediate school, where he has friends, is progressing well, and is participating in extracurricular activities;

(d)Thomas does not want to leave New Zealand and has a strong sense of identity here;

(e)Dr Tappenden recorded that Thomas has begun to internalise his residence in New Zealand as part of his identity;

(f)Thomas’ school record is evidence of how he is settled in New Zealand; and

(g)Thomas has spent almost three years outside of Australia, which amounts to a quarter of his entire lifetime, in which he has gone from nine years old to twelve years old.

[116]          Mr Vincent submits that all of these factors were carefully considered by the Family Court Judge and weighed appropriately in the circumstances where there was significant evidence to conclude that Thomas was settled, that was not negated by Mr Buckley’s concealment. He says that Ms Andrews’ evidence was not ignored— and nor did the factors noted by the Judge relate only to physical settlement rather than emotional and psychological settlement. He submits that Thomas’ settlement in the present case goes beyond mere adjustment, as his own views indicate that his identity is tied to his presence in New Zealand.

[117]          Mr Vincent submits that there will inevitably be an aspect of concealment and deception in an abduction case. He says it can only undermine the settlement defence where it goes so far as to undermine the child’s sense of stability and settlement in New Zealand—requiring the court to consider the extent and degree of subversion involved and consider how that dishonesty has affected the child.52 Upon the application of that approach to the present case, Mr Vincent says that Mr Buckley’s concealment has not undermined Thomas’ settlement. He submits that the only

52     See Simpson v Hamilton, above n 10.

comparison between Mr Buckley and Ms Hamilton (the mother in Simpson v Hamilton) is that they concealed their location and that they did so in New Zealand. He says Ms Hamilton went to extreme lengths to conceal the child concerned, including misleading the immigration authorities, whereas:

(a)Thomas has a  stable  living  situation,  in  the  same  location  in  New Zealand;

(b)Thomas has been at the same school the entire time, apart from when he was required to transition to intermediate school;

(c)Thomas has had contact with his mother throughout the time he has been in New Zealand, including in-person contact; and

(d)Mr Buckley’s influence on Thomas has not compromised his settlement.

[118]          Mr Vincent submits that the discretion must be exercised in accordance with the child’s best interests, as has been clarified by the Court of Appeal in LRR v COL. As to Thomas’ best interests, Mr Vincent notes:

(a)there is no guarantee that Thomas’ return to Australia would result in a better relationship with his mother;

(b)Thomas’ sense of identity and belonging will be impacted should he be forced to return;

(c)Thomas may feel disempowered and unheard by the adults in his life;

(d)there is nothing in Australia for Thomas except his mother, and his community and identity are in New Zealand; and

(e)Thomas’ views are clear in that he wants to remain, and although little weight may be placed on those views, they should not be ignored.

[119]          In conclusion, Mr Vincent submits that Thomas has been absent from Australia for three years and that this has led to a tangible disconnection from Australia and a complete reformulation of his identity as a New Zealand teenager. He says:

The settled child defence and the child objection defence are established in this case and the presumption in favour of prompt return therefore displaced. When the Court comes to considering its overarching discretion, [Thomas’] best interests should be at the forefront of that whole exercise and his views should be heard and given weight to.

…

The most appropriate result is therefore to decline [Ms Andrews’] appeal, allow [Thomas] to stay in New Zealand, and  permit  [Ms Andrews]  and [Mr Buckley] to engage on how best to care for [Thomas] and rebuild his relationship with his mother, in New Zealand.

Submissions by the Lawyer for the Child

[120]          Ms Davidson submits that deception and concealment is relevant to assessing whether a child is settled under s 106(1)(a) of the Act. Ms Davidson considers that there are many similarities between the present case and Simpson v Hamilton. In particular, she highlights:

(a)[Thomas] has experienced frequent moves between three countries during his life, including a previous unilateral relocation to New Zealand which involved Hague Convention proceedings;

(b)[Mr Buckley] removed [Thomas] without notice from Australia to a third state, defeating [Ms Andrews’] ability to assert her parenting rights;

(c)The argument that China was better poised to manage the COVID outbreak, considering it was the epicenter of the pandemic, holds little weight;

(d)Reliance on China not being a signatory to the Hague Convention to defeat [Ms Andrews’] ability to take legal steps for recovery;

(e)[Mr Buckley’s] clandestine move to New Zealand;

(f)The number of attempts to conceal this from [Ms Andrews], including monitoring all contact between [Thomas] and his mother and having [Thomas] pretend he was still in China;

(g)Assertions of lost travel documentation designed to prevent return to Australia.

[121]          Ms Davidson submits that it is not safe to rely on the settled defence when the length of time in the  new  contracting  state  is  due  to  deceit  and  concealment.  Ms Davidson concludes that where the settled defence is available, this Court should be cautious in declining the return when the defence has been made out primarily due to concealment and deception.53 Ms Davidson notes that Dr Tappenden concludes that Thomas’ views as to where he wishes to live have been materially and significantly influenced by his father. She says this is relevant to whether Thomas is psychologically settled in New Zealand. Ms Davidson submits, however, that Simpson v Hamilton supports a wider consideration of a child’s best interests where no s 106 ground for return has been made out.

[122]          Finally, Ms Davidson identifies several aspects of Thomas’ best interests that are particularly important to the exercise of the Court’s discretion. She notes the risk of disruption in attachments for Thomas, after three years away from Australia, especially for a child both parents describe as anxious.

General approach to Convention matters

[123]          Mr Buckley’s behaviour in abducting Thomas is, as the Family Court Judge put it, abhorrent. There is no doubt that Ms Andrews has suffered as result, in being unable to fully participate in Thomas’ upbringing. But it is important to recognise from the beginning that the Convention is not focused on the “rights” of parents. It is focused on the best interests of children. In Re E, delivering the judgment of the United Kingdom Supreme Court, Baroness Hale and Lord Wilson said:54

14         … the fact that the best interests of the child are not expressly made a primary consideration in Hague Convention proceedings, does not mean that they are not at the forefront of the whole exercise. The Preamble to the Convention declares that the signatory states are “Firmly convinced that the interests of children are of paramount importance in matters relating to their custody” and “Desiring to protect children internationally from the harmful effects of their wrongful removal or retention …” This objective is, of course, also for the benefit of children generally: the aim of the Convention is as much to deter people from wrongfully abducting children as it is to serve the best interests of the children who have been abducted. But it also aims to serve the best interests of the individual child. It does so by making certain rebuttable assumptions about what will best achieve this: see the Explanatory Report of Professor Pérez-Vera, at para 25.

53     U v R [1988] NZFLR 385.

54     Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144.

15         Nowhere does the Convention state that its objective is to serve the best interests of the adult person, institution or other body whose custody rights have been infringed by the abduction (although this is sometimes how it may appear to the abducting parent). The premise is that there is a left- behind person who also has a legitimate interest in the future welfare of the child: without the existence of such a person the removal is not wrongful. The assumption then is that if there is a dispute about any aspect of the future upbringing of the child the interests of the child should be of paramount importance in resolving that dispute. Unilateral action should not be permitted to pre-empt or delay that resolution. Hence the next assumption is that the best interests of the child will be served by a prompt return to the country where she is habitually resident. Restoring a child to her familiar surroundings is seen as likely to be a good thing in its own right. As our own Children Act 1989 makes clear, in section 1(3)(c), the likely effect upon a child of any change in her circumstances is always a relevant factor in deciding what will be best. But it is also seen as likely to promote the best resolution for her of any dispute about her future, for the courts and the public authorities in her own country will have access to the best evidence and information about what that will be.

16         Those assumptions may be rebutted, albeit in a limited range of circumstances, but all of them are inspired by the best interests of the child. Thus the requested state may decline to order the return of a child if proceedings were begun more than a year after her removal and she is now settled in her new environment (article 12); or if the person left-behind has consented to or acquiesced in the removal or retention or was not exercising his rights at the time (article 13(a)); or if the child objects to being returned and has attained an age and maturity at which it is appropriate to take account of her views (article 13); or, of course, if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”: article 13(b). These are all situations in which the general underlying assumptions about what will best serve the interests of the child may not be valid. We now understand that, although children do not always know what is best for them, they may have an acute perception of what is going on around them and their own authentic views about the right and proper way to resolve matters.

[124]          In LRR v COL, the Court of Appeal, having referred to this passage from Re E, said:55

The requirement to treat the welfare and best interests of the child as paramount applies to proceedings under sub-pt 4 of pt 2 seeking the return of a child under the Convention. Section 4(4) does not disapply s 4(1). Rather,  s 4(4) makes it clear that the requirement to determine such proceedings speedily, and to return a child promptly if no exception is made out, is not limited by s 4(1). The inquiry into the best interests of the child must be approached in the manner contemplated by ss 105 to 107. But it remains the case that the welfare and best interests of the child are, as the United Kingdom Supreme Court put it in Re E, at the forefront of the whole exercise. The outcome does not turn on the interests of the parents or guardians of the child, or for that matter of the relevant Central Authorities or States.

55     Above n 4, at [83].

[125]          I have set out earlier the Court of Appeal’s reservations about the majority’s suggestion in HJ that where an exception is made out under s 106, the interests of the particular child may nonetheless give way to the goal of deterring potential abductors in the future. I understand the effect of LRR v COL to be that when I come to consider how to exercise the discretion as to return, the test is to assess what would be in Thomas’ best interests. It is not to weigh Thomas’ best interests against the policy behind the Convention that abducted children must be returned to deter future abductors, in the way the majority did in HJ. This reflects an approach where:

(a)the summary return process is given effect without undue focus on the best interests of the child because what is intended to be achieved is a prompt return of the child to their habitual residence, where that forum can make the substantive decisions required about the child’s care; and

(b)once a defence is made out under s 106(1) of the Act, the Court’s discretion to order the return of the child is to be exercised in the best interests of the child.

[126]        I record that Mr Sutton and Ms Davidson maintained the position that I am bound by HJ to undertake the weighing exercise as expressed by the majority of the Supreme Court. They express concern that not undertaking this exercise permits that the policy behind the Convention to be circumvented. On the other hand, Mr Vincent points to how the Supreme Court in the United Kingdom has revisited its approach and says that earlier caselaw no longer has the weight it once did. I agree with his submission that the result of this is that the cases that underpin aspects of the majority’s decision in HJ have been undermined and that this is reflected in the Court of Appeal’s conclusions in LRR v COL.

[127]          I consider that the judgment in LRR v COL has the effect I have described above, and also that I am bound by the Court of Appeal’s judgment. In any event, respectfully, I agree with the Court of Appeal’s analysis.

Relevance of concealment and deception

[128]          What has troubled me more are the implications of the Court of Appeal’s analysis in LRR v COL for my consideration of the concealment and deception that has occurred in this case, especially in light of Simpson v Hamilton. Before discussing this legal question, I address the facts related to concealment and deception.

[129]          Of particular concern to me is Mr Buckley’s history of repeatedly abducting Thomas. As a result of the first abduction from Australia to New Zealand in 2015, a Convention process was invoked and Thomas’ return to Australia was achieved. In 2018, Mr Buckley again took Thomas to New Zealand. This was in breach of an Australian court order.  In the event, they returned to Australian  after two weeks.  Mr Buckley then took Thomas to China without Ms Andrews’ consent. As China is not a contracting state to the Convention, she was unable to use the Convention process. I accept the evidence from Mr Jie (Jerry) Yu that Ms Andrews would have faced significant legal challenges in procuring Thomas’ return to Australia under Chinese law.

[130]          Mr Buckley then brought Thomas to New Zealand.  Mr Buckley  deceived Ms Andrews by bringing Thomas to New Zealand and maintained that deception upon arrival. I accept that the evidence establishes that Mr Buckley made Thomas complicit in this deception by requiring him not to tell his mother about where he was living, and indeed to pretend that he was still in China. There is conflicting evidence about whether Thomas’ passport was truly lost in China or simply expired, but it is certainly the case that Mr Buckley took the opportunity to obtain a New Zealand passport for Thomas and was able to do so without Ms Andrew’s involvement. These are serious matters.

[131]          While properly accepting that concealment and deception is at play in the present proceeding, Mr Vincent emphasised that Ms Andrews has had consistent contact with Thomas, and it was only  for  nine  or  ten  months  that Thomas  and Mr Buckley’s location in New Zealand was concealed. Mr Vincent  also says that  Mr Buckley invited Ms Andrews to join him and Thomas in China. I do not consider these matters ameliorate the concealment and deception.

[132]          Mr Buckley has had complete practical control over Thomas’ contact with Ms Andrews while they were in China and now in New Zealand. I also accept that the evidence from Ms Andrews and Dr Tappenden’s report establish a strong likelihood that Mr Buckley was present (off-screen) during Thomas and Ms Andrews’ calls. This is certainly apparent from the events that occurred that led to Ms Andrews discovering that Thomas was in New  Zealand  with  Mr Buckley.  Those  events  demonstrate Mr Buckley’s presence during calls and his somewhat desperate but ultimately unsuccessful attempt to maintain the deception that he and Thomas were in China.

[133]          Counsel drew comparisons and contrasts with the facts in Simpson v Hamilton. While Mr Vincent sought to characterise Mr Buckley’s actions as being at the lower end of the scale of concealment and deception (for example, in comparison with Simpson v Hamilton), I am not convinced this is the case. I accept that Simpson v Hamilton was more serious, but  this is  by only a margin. There is  no doubt  that  Mr Buckley’s conduct may properly be characterised as reprehensible.

[134]          I explored with counsel how this Court should take into account concealment and deception when it is addressing whether or not a child is settled in their new location. Mr Sutton and Ms Davidson each submitted that the Court should consider matters of concealment and deception both in the factual assessment of whether Thomas is settled and in the exercise of my discretion. Ms Davidson says that it would be anomalous not to consider matters of concealment and deception in the context of the discretion as it is important for the Court to consider the totality of Thomas’ experience in making the decision about whether or not he should be returned to Australia.

[135]          Mr Vincent submitted that matters of concealment and deception are most relevant to the factual assessment of whether Thomas is settled. He says that given LLR v COL, it is clear that the exercise of the discretion should be focused on Thomas’ best interests. He says concealment and deception are of limited or no relevance at that stage.

[136]          I agree that that matters of concealment and deception are relevant to establishing as a matter of fact whether or not Thomas is settled in New Zealand. I

also conclude that matters of concealment and deception may be considered in the exercise of the discretion so long as this does not amount to undertaking the weighing exercise between a child’s welfare and best interests and the policy underpinning the Convention that the Court of Appeal in LRR v COL has said is not appropriate. Rather, the Court of Appeal’s approach, set out above, is that the discretion must be exercised in the best interests of the child, having regard to the circumstances that established the exception.

[137]          However, I do not accept that, but for the concealment and deception, Thomas could not have become settled and for this reason alone, the Court should not find him settled. In my view, a more nuanced assessment is required. Ms Davidson referred me to the statement by French and Gilbert JJ in Simpson v Hamilton that “it will likely be difficult for an abducting parent to demonstrate that a child is settled in her new environment, overcoming the Court’s obligation to order return, in cases of concealment or subterfuge”.56 On my reading of Simpson v Hamilton, this reflects the Court’s assessment of the factual situation at the time the Family Court was considering the return application. I do not understand that statement to go so far as to say deception and concealment have an automatic negating effect on a child who is, on the facts, settled. It may also be important that the Court of Appeal’s condemnation of the mother’s behaviour in Simpson v Hamilton was made in the context of the Court’s reluctant conclusion that the child should not be returned to Germany.

[138]          To my mind, assessing concealment and deception in the context of whether a child is settled requires considering the effect on the child. While a parent taking their child ‘on the run’ may indeed be egregious behaviour, the focus must be upon the effect of that behaviour on the child. So in the present case, it is relevant to ask whether Thomas is settled in New Zealand against the background of the period during which Mr Buckley took him China and then on to New Zealand. Also relevant is the number of moves Thomas has had in his relatively short life. Another relevant matter might be where the effect of concealment and deception has been to deprive a child of a genuine relationship with the parent who is left behind, thereby diminishing their ability to

56     Simpson v Hamilton, above n 10, at [48]; citing Cannon v Cannon [2004] EWCA CIV 1330, [2005] 1 WLR 32 at [56]–[61].

become settled. I consider matters such as these below when I undertake an assessment on a factual basis of whether Thomas is settled in New Zealand.

[139]          In the present case, assessing concealment and deception inevitably also gives rise to the relevance of  parental influence in  assessing whether a child is  settled.  Dr Tappenden says there is sufficient evidence to concludes that Thomas’ views as to where he wishes to live have been materially and significantly influenced by his father and I accept that this is the case.

[140]          Mr Vincent acknowledges that Mr Buckley has influenced Thomas. He submits that to an extent this is inevitable when Mr Buckley has been Thomas’s primary carer for three years. But he says I must also consider other matters. He refers to Thomas’ independent statement in his school yearbook last year about his happiness at school and how he is looking forward to moving to intermediate school. Mr Vincent also refers to Dr Tappenden’s comments about Thomas being at an age and stage, and maturity, that he can express his genuine views.

[141]          Mr Vincent also submits that parental influence is better understood as relevant to the child objection defence and emphasises that there is no appeal against the finding that this defence is established.

[142]          It seems to me that parental influence may also be factually relevant to the settled defence, as it may have the effect of providing a false basis for the nature of the state of settlement.

[143]          Mr Buckley has plainly influenced Thomas’ views. I nonetheless consider that his views are not to be ignored, in light of Dr Tappenden’s observations.

Is Thomas settled in New Zealand?

[144]          I turn then to consider whether Thomas is, as  a factual matter, settled in  New Zealand. “Settled” is to be given its ordinary meaning. It is well-established that, as the Supreme Court held in HJ, and as agreed by counsel:57

57     Secretary of Justice v HJ, above n 9, at [55] per Tipping J.

Whether a child is now settled in its new environment involves a consideration of physical, emotional and social issues. Not only must a child be physically and emotionally “settled” in the new environment, he or she must also be socially integrated.

(footnotes omitted)

[145]          On the available evidence I am drawn to the conclusion that Thomas is settled in New Zealand. The evidence indicates that:

(a)Thomas is socially integrated and engaged in his community and within his peer group. Thomas is described by teachers as “a respectful and well-mannered young man”, who participates confidently in class and extracurricular activities. He appears to enjoy his school and engaging in sports with his peers. He is said to be excelling in his schoolwork. He has friends that live in the same area as him.

(b)Thomas has progressed from primary to intermediate school, alongside his peers. In school materials he describes enjoying school activities and said in a farewell to his primary school that he had “a pretty good time”, despite only being there for a single year.

(c)Thomas’ living situation is stable and secure. He has New Zealand citizenship. His father and grandmother own a house together. There is no indication of them intending to leave New Zealand, and this is consistent  with  as  his  father’s  long  held  intention  to  live  in  New Zealand, as explained to Dr Tappenden.

(d)Thomas has a strong and supportive attachment to his grandmother. They have a close relationship, and she has been a significant caregiver to him.

(e)Thomas objects to leaving New Zealand. He appears to have developed a sense of identify and belonging with New Zealand. His views support

the finding that he is settled in New Zealand, notwithstanding the influence his father has had upon him. 58

(f)Thomas has now spent almost two years living in New Zealand with his father and has been away from Australia for over three years, with a consequent loss of connection there.

[146]I have also considered:

(a)The ways in which Thomas was made complicit in his removal to New Zealand from China without his mother’s knowledge or approval.

(b)The fears which Thomas has seemingly adopted from his father, and the Mr Buckley’s significant influence on  Thomas  including  that  Ms Andrews would prevent Thomas’ return to New Zealand as noted by Dr Tappenden in her report.

(c)The relatively ‘spartan’ lifestyle of Thomas’ father and his high level of involvement with Thomas’ day to day activities including his control over his contact with Ms Andrews.

(d)The history of abductions by Thomas’ father.

[147]          Having considered all these factors, and Dr Tappenden’s report, the affidavit evidence and Ms Davidson’s discussion with Thomas, I find that Thomas appears to be a normal and thriving 12 year old boy. He is physically settled, in both his home and schooling. He appears emotionally and psychologically settled, notwithstanding the dispute between his parents, and has a secure attachment with his grandmother. He also appears socially integrated and settled within his peer group, with whom he has progressed into intermediate school. Despite the behaviour of his father, Thomas has successfully  integrated  into  life  in  New  Zealand.  In  my  view  the  effect  of   Mr Buckley’s actions have not been to causatively negate Thomas’ state of settlement.

58 Dr Tappenden observed that whilst Thomas’ initial separation from his mother and ongoing apparent contentment toward remaining in New Zealand may have begun with significant input from his father, it is likely now perpetuated by social factors external to his father’s input.

[148]          Given all the evidence and information before me, I conclude that Thomas is settled in New Zealand. I am satisfied that this is the case and that the Family Court Judge did not err in coming to this conclusion.

Exercise of the discretion

[149]          I  have  concluded  that  Thomas  is  settled  in  New  Zealand  (pursuant  to   s 106(1)(a)). The Family Court finding that the child objection defence is established (pursuant to s 106(1)(c)) is not under appeal. It is therefore necessary now for me to consider whether I should exercise my discretion in favour of making an order for the return of Thomas to Australia.

[150]          As to the relevance of matters of concealment and deception to the exercise of the discretion, my concern (as discussed earlier) relates to the risk that considering those matters will cause the Court to adopt a weighing exercise between the child’s best interests and the need to send a message to abducting parents that would amount to the kind of exercise the Court of Appeal in LRR v COL said must be avoided. Rather, I adopt the Court of Appeal’s approach by having regard to the concealment and deception as part of the circumstances that established the exception. I also note Tipping J’s statement in HJ that when undertaking the assessment of whether return would or would not be in the best interests of the child found to be settled in the new environment, the judge should consider “everything logically capable of bearing on whether it is in the best interests of the child to be returned”.59

[151]          Mr Sutton accepts that the question is finely balanced but says that ultimately the Family Court Judge was wrong to exercise her discretion in favour of Thomas remaining in New Zealand. He says I should make a return order. I am sympathetic to Mr Sutton’s submission that the application for return by Ms Andrews was only made a little outside the one year period contemplated in s 106(1)(a) and that she comes to the Court with “clean hands”. I am unaware of any basis on which Ms Andrews can be criticised in terms of her actions to be reunited with Thomas. There is no doubt about her commitment to and love for Thomas. Mr Sutton emphasises Dr Tappenden’s

59     Above n 9, at [86].

view that there are risks to Thomas whether he remains in New Zealand or is returned to Australia, and thus a return order should be made.

[152]          Mr Sutton emphasises that New Zealand and Australia are countries with similar cultures and Thomas would readily settle in Australia, despite the initial upheaval of moving. While acknowledging Thomas’ relationship with his grandmother, Mr Sutton says there are no other significant social connections for Thomas in New Zealand. He also notes that Mr Buckley is an online share trader and is able to perform this work anywhere.

[153]          Mr Sutton notes the similarity in legal systems between New Zealand and Australia and is confident the family court in Australia could provide the same level of support to Thomas and his parents as would occur in New Zealand. While this may be the case, I prefer Ms Davidson’s perspective on this point. In my view, she is correct to say that the Family Court in New Zealand “is better prepared to address the issues of care and contact for [Thomas] with active proceedings, an engaged psychologist, and evidence before the Court”. Ms Davidson emphasises that if Thomas remains in New Zealand, decisions about substantive care matters could be made within his timeframes (which I understand to be a reference to the requirement in s 4(2)(a)(i) of the Act that decisions affecting a child should be made and implemented within a timeframe that is appropriate to the child’s sense of time).

[154]          On the other hand, Mr Vincent emphasises that Simpson v Hamilton shows that even where there is deception and concealment, the Court’s discretion can properly be exercised against a return order. He says that given LRR v COL, the focus must be on what Thomas’s best interests require.

[155]          I cannot accept Mr Sutton’s argument that what he casts as the policy underlying the Convention must prevail in a case such as this, where there is concealment and deception and inappropriate parental influence, as against Thomas’ best interests. Mr Sutton relies on the Court of Appeal’s discussion in Simpson v Hamilton about the importance of that policy and says that case shows how strongly the Court considered the child should have been returned and that it was only unable to make such an order because of unusual circumstances. In my view, Mr Sutton is

incorrect when he says that I must still undertake the weighing exercise as the majority did in HJ, despite the Court of Appeal decision in LRR v COL. While he submits that LRR v COL does not say that the best interests of the child are paramount, but simply a factor, this is not how I understand the Court of Appeal’s judgment in that case. This is so despite LRR v COL being a case determined under a different exception in s 106. To the extent that the Family Court Judge adopted the approach  contended for by  Mr Sutton, I consider that she erred.

[156]          I consider the correct approach for me to take is to assess whether it is in Thomas’ best interests that I order his return to Australia,  on the basis that the two   s 106 defences are established. I accept Ms Davidson’s submission that I should assess Thomas’ situation in its entirety, and I therefore keep the background matters discussed above in mind as I consider Thomas’ best interests. I also record that there was no evidence before me as to whether Mr Buckley or his mother would move to Australia or not, were I to order Thomas’ return there. While Ms Andrews has expressed her preference to stay in Australia, I do not consider that I am in a position to form a view as to what she may do if Thomas remains in New Zealand. Therefore, these possibilities have not affected my decision.

[157]          I have considered the impact of Mr Buckley’s influence on Thomas’ views.60 While Mr Buckley has wrongly influenced Thomas to fear that his mother may force him to live in Australia, I find that it is still appropriate for me to take Thomas’ desire to stay in New Zealand into account. The alienating parental influence in this case is not, to my mind, of the same character as that in Simpson v Hamilton. As I said above, Thomas has developed a sense of identity and belonging with New Zealand, notwithstanding the influence his father has had upon him.

[158]Importantly, Dr Tappenden said:

Developmentally, [Thomas] is at a sensitive stage for the decision presently before the Court; five or even three years ago he would have been more containable in his behaviour should the decision to return him to Australia be made and developmentally there was less at stake in disrupting his social

60   I note that the Court of Appeal in [Summer] v [Green] [2022] NZCA 91 at [14] accepted that it is a well-established principle that in weighing the welfare and best interests of a child the Court may take into account the extent to which the child’s views are the product of influence from an abducting parent.

relationships and nascent sense of identity based on his friendships and place of residence.

[159]          Ultimately, I conclude that it is in Thomas’  best  interests  to  remain  in  New Zealand. I place some weight on the fact this accords with Thomas’ wishes and that I do not accept  that  his  wishes  can  be  completely  discounted  because  of  Mr Buckley’s influence. He is a 12 year old child (who is turning 13 years old in November) of sufficient maturity that he is able to express his wishes in a meaningful way. His parents recognise him as a somewhat anxious child. He is worried about being forced to live in Australia. He has already lived in several places. He has settled in New Zealand. Compelling him to restart his life in Australia now is not in his welfare and best interests.

[160]          I agree with Dr Tappenden’s view that Thomas should have the opportunity to restore and develop his relationship with his mother, and that this will be in his best interests. Dr Tappenden observed:

There are also likely to be significant cognitive biases at play regarding resistance to moving back to Australia and returning to the partial or fulltime care of his mother. Cognitive biases he has developed at nine years old, and which he has not had the opportunity to test and adjust because his contact with his mother (despite reports of regular video contact with her) has been limited in its depth and quality.

[161]          Thomas has explicitly confirmed his wish to have a relationship with his mother. This can (and should) be achieved even if he continues to live in New Zealand.

[162]          I also agree with the Family Court Judge’s comments that this outcome is not intended to reward Mr Buckley’s concealment and deception. His conduct was indeed wrong. Mr Buckley will now have an important opportunity to demonstrate his commitment to Thomas re-establishing his relationship with Ms Andrews in a substantial and meaningful way, as he has indicated he is supportive of. He has specifically offered financial support to achieve this, and I consider that such support is appropriate in the circumstances. It can be anticipated that to the extent that the Family Court is involved in future arrangements for care of and access to Thomas, that Court will be mindful of Mr Buckley’s past behaviour and the commitment he has expressed to support Thomas’ relationship with his mother.

Result

[163]Accordingly, for the reasons above, the appeal is dismissed.

Costs

[164]          Costs were not addressed at the hearing. I understand that Ms Andrews has been financially supported in her appeal by the Attorney General’s office in Australia. In these circumstances and given that Mr Buckley’s abduction of Thomas is at the heart of the proceeding, my initial view is to let costs lie where they fall. Pursuant to s 142(1) of the Act, in any proceedings under the Act, the Court may make any order as to costs as it thinks fit. I note however, no order for costs may be made in respect of Ms Davidson’s costs.61

[165]          Should any party wish to contend for a different outcome, a memorandum of counsel (of no more than five pages) should be filed and served within 10 working days of the date of this judgment with a memorandum of counsel in reply (of no more than five pages) to be filed and served within a further five working days. Unless the assistance of counsel is required, I will decide costs on the papers.

McQueen J

Solicitors:

Thomas & Co Lawyers, Auckland for Appellant Cullinane Steele Ltd, Levin for Respondent

61     Care of Children Act 2004, s 131(5)(a).