Green v White
[2018] NZHC 3249
•11 December 2018
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 judgments/
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2018-443-60
[2018] NZHC 3249
IN THE MATTER OF THE CARE OF CHILDREN ACT 2004 THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 AND
AN APPEAL AGAINST A FAMILY COURT DECISION DIRECTING CHILDREN BE REMOVED TO AUSTRALIA
BETWEEN
MS GREEN
Appellant
AND
MR WHITE
Respondent
Hearing: 3 December 2018 Appearances:
M D Cochrane for the Appellant A F Johnston for the Respondent
Judgment:
11 December 2018
JUDGMENT OF CULL J
TABLE OF CONTENTS
Factual background 3
Legal context: child abduction 14
District Court decision 20
Approach to appeal 28
Grounds of appeal 30
Were the children habitually resident in Australia before their removal to New Zealand? 33
GREEN v WHITE [2018] NZHC 3249 [11 December 2018]
Analysis 36
Is there a grave risk of an intolerable situation if the children are returned? 51
Analysis 57
Was Ms Green properly heard before the Family Court? 78
Result 80
[1] This is an appeal under the Hague Convention and the Care of Children Act 2004 (the Act) from a decision of the Family Court, ordering the return to Australia of two children taken by their mother in breach of the father’s parenting rights.1 The Secretary for Justice as the New Zealand Central Authority under the Hague Convention made the initial application for return in the Family Court and the mother now appeals the Family Court’s decision for return of the children to Australia.
[2] This appeal concerns ss 105 and 106 of the Care of Children Act. The mother appeals on two grounds: that under s 106 that there is a grave risk that the children’s return would otherwise place the children in an intolerable situation;2 and that the finding under s 105(1)(d) that the children were habitually resident in Australia at the time of removal was in error.
Factual background
[3] Mr White (the father) is an Australian national. Ms Green (the mother) is a New Zealand national.3
[4] From the Family Court decision and the chronology provided, the history between the parties is as follows.
[5] The parties met and started their relationship in the United Kingdom in 2010. In 2012, they decided to move to Australia. Ms Green lived and worked in Western Australia for one and a half years from 2007.
[6] In late 2012 the parties moved to South Australia. Their first child, Paul, was born in Australia on 22 May 2014 and is an Australian national. Their second child,
1 [White] v [Green] [2018] NZFC 6420.
2 Section 106(1)(c)(ii).
3 The names of the parties and children have been anonymised to protect their identities.
John, was born in New Zealand on 11 January 2017 and is a dual Australian and New Zealand national. The children are currently aged four and one respectively.
[7] Ms Green and the children visited New Zealand for a holiday on 8 November 2017. Ms Green and Mr White had agreed they could go on this holiday, on the written condition the mother would return the children to Australia by 20 November 2017. Despite the agreed return date, Ms Green and the children returned to Australia two weeks later, on 3 December 2017.
[8] There were arguments and tension between the parties following their return. Ms Green and Mr White separated on 6 December 2017. On that day, Mr White left for work at 5.45 am. When he returned home later that day, Ms Green and the children were not there. Ms Green texted Mr White later that day saying: “I am sorry … but I’m to frightened to be at home so am staying in a hotel for a few nights to get myself sorted ... you were not willing to go and I did not feel we are safe staying.”
[9] On 8 December 2017, Ms Green applied for an interim intervention order, which was granted by the Magistrates Court of South Australia on 14 December 2017. The order prohibited contact between Mr White and the children.
[10] On 21 December 2017, the interim intervention order was amended following Mr White’s application, and varied to allow him contact with the children if subsequent Family Court orders permitted him to have contact.
[11] Unbeknown to Mr White, Ms Green and the children travelled to New Zealand on or about 9 January 2018. Mr White was informed of this state of affairs only when he attended Court to contest Ms Green’s interim intervention application on 31 January 2018. Mr White was handed a letter written by Ms Green confirming she had left Australia on 9 January.
[12] Ms Green and the children currently live with Ms Green’s mother (the children’s maternal grandmother). The interim intervention order ceased as at 14 March 2018 because Ms Green notified the Court that she was no longer in Australia.
[13] On 16 May 2018, Mr White’s application for return of the children was filed in the New Zealand Family Court. On 18 May 2018, Ms Green filed a without notice application seeking a parenting order under s 47 of the Act. She disclosed some drug- taking on her behalf.
Legal context: child abduction
[14] In any proceedings under the Act, s 4 states that “the welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration”.
[15] Sections 105 and 106 of the Act govern international child abduction. Those sections give effect to the Convention on Civil Aspects of International Child Abduction (the Hague Convention).4 The objectives of the Hague Convention are to:5
(a)secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b)ensure the rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
[16] Subject to s 106, a Court must make an order returning a subject child promptly if an application is made under s 105 of the Act, and the Court is satisfied the grounds of the application are made out.6 There are four grounds. The parent seeking the child’s return (Mr White) must satisfy the Court on the balance of probabilities that:7
(a)the child is present in New Zealand;
(b)the child was removed from another Contracting State in breach of that person’s rights of custody in respect of the child;
4 Convention on the Civil Aspects of International Child Abduction 1343 UNTS 98 (opened for signature 25 October 1980, entered into force 1 December 1983).
5 Article 1.
6 Section 105(2); and B v B [1994] NZFLR 497 (HC) at 502.
7 Section 105(1).
(c)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)the child was habitually resident in that other Contracting State immediately before the removal.
[17] Ms Green accepts that the first three criteria under s 105 are made out. However, Ms Green challenges the final criterion, that the children were habitually resident in Australia immediately before the removal. This ground was the subject of the Family Court’s ruling in the Judge’s removal decision.
[18] Once the grounds under s 105 are made out, the onus shifts to the person opposing the making of an order for return of a child to prove, on the balance of probabilities, that there is an available defence under s 106 as to why the Court may refuse to make an order returning the child. Section 106(1) of the Act provides:8
106 Grounds for refusal of order for return of child
(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
8 Emphasis added.
(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.
[19]Ms Green relies on subs (1)(c)(i) and (ii) in this appeal in her defence.
District Court decision
[20] The Judge allowed the Central Authority’s application on behalf of Mr White and ordered that the two children be returned to Australia.
[21] The Judge found that the first three preconditions under s 105 of the Act were met. The only condition in issue was whether the children’s habitual residence was Australia.
[22] The Judge was satisfied, on the balance of probabilities, that the children’s habitual residence, immediately before their removal, was Australia. The evidence established that the children had developed an attachment to Australia and were integrated there. Both children had strong ties to Australia: they resided at a stable address, and had Australian bank accounts and Medicare membership. Paul was an Australian citizen and even though John was a New Zealand national, he had lived in Australia since he was approximately six weeks old.
[23] The Judge also found there was total integration in Australian life in every sense for the parents: they both had employment, financial arrangements with a bank, owned residential properties as well as having family and friendship connections. There was no evidence of joint steps being taken by both parents to achieve the alleged objective of moving to New Zealand in or around May 2018. There were no plans to sell their residential properties and they had not yet finished home renovations. Although Ms Green had indicated her desire to move to New Zealand, this was not shared by Mr White. Even if there was a shared and common purpose to possibly
move to New Zealand in the future, the Judge found this was insufficient to displace the children’s habitual residence.
[24] Having found all four preconditions under s 105 satisfied, the Judge turned to consider Ms Green’s available defences under s 106 of the Act.
[25] The Judge held that Ms Green had not established there was a grave risk of physical or psychological harm to the children if they were returned to Australia. The Judge considered that the concerns about Mr White’s alleged drug-taking or violence could be dealt with appropriately in Australia and sufficient legal protection was available if needed. Further, Ms Green could make an application for an interim intervention order for protection against violence (as she previously had) or an application for relocation to New Zealand. As Ms Green will return to Australia if an order for return is made, the Judge found there was no risk that the children would be returning to Mr White’s care.
[26] Similarly, the Judge held there was no grave risk the children would be placed in an intolerable situation if they were returned to Australia. The Judge rejected Ms Green’s evidence about the financial hardship and grave risk of poverty that awaited the children. The Judge accepted that financial hardship could be a reason for the Court to refuse to order return of a child, but did not find it was made out on the evidence before her in this case. The Judge accepted Mr White’s evidence that:
(a)he would pay the airfares for Ms Green and the children to return to Australia;
(b)he will provide Ms Green with at least AUD200 per week in child support;
(c)he will provide the family home for Ms Green and the children to live in rent-free until the parties reach an agreement for the settlement of their relationship property and spousal maintenance;
(d)there will be Medicare available and at the very least a low-income healthcare card available;
(e)Mr White’s work union provides for ambulance cover for Ms Green and the children; and
(f)Ms Green has the ability to receive a New Zealand International Custody Disputes payment whilst living in Australia.
[27] On this basis, the Judge found the children were wrongfully removed from Australia and ordered their return. The Judge ordered Mr White would meet the costs of return to Australia.
Approach to appeal
[28] This is an appeal under s 143 of the Act. It is a general appeal and occurs by way of rehearing.9 As Duffy J confirmed in the case of B v B, appeals under s 143 are general appeals.10 Her Honour held:
[42] The questions to be determined under the Care of Children Act seem to me to involve value judgments which at their core will always require consideration of what is in the best interests of the child. Deciding these questions is not a matter of discretion. The Court that is seized of these questions must reach a decision on what is in the child’s best interests. Answers to this question may vary with each Judge. But that is because the answers involve value judgments, which by their nature will never yield a definitive answer; it is not because the answers are discretionary.
[43] It follows that to read the appeal right in s 143 as if it were an appeal from the exercise of a discretion would be to constrain an appellant’s rights. It would remove from the appellant the right to have his or her appeal dealt with in accordance with the Lodestar principles. It would effectively convert the general appeal right, given in s 143, into something resembling a right to appeal on a question of law only. It would mean an appellant did not enjoy the benefit of having the appellate Court consider the merits of the value judgments being appealed. All this would be wrong. I consider that insofar as there remains a difference of approach towards this appeal right, the approach
9 Under s 143(4) of the Care of Children Act 2004, the High Court Rules 2016 and ss 125–130 of the District Court Act 2016 apply to an appeal to the High Court as if it were an appeal under s 72 of the District Courts Act 2016. Sections 124 and 127 of the District Court Act, and r 20.18 of the High Court Rules, provide that it is a general appeal to be conducted by way of rehearing.
10 B v B [2008] NZFLR 1083 (HC). This approach has been confirmed recently in Mikova v Tova [2016] NZHC 1983 at [48]; Olliver v Richardson [2018] NZHC 2696 at [27]–[29]; and COL v LRR [2018] NZHC 2902 at [22].
adopted in L v A and A v X, which treats the right as on[e] of general appeal, is to be preferred for the reasons given in those judgments.
[44] Since I have concluded that the appeal right involved in this case is a general appeal right, I must approach the appeal in accordance with the principles set out in Lodestar. This means I must accept responsibility for determining what is in the best interests of the child. It also means I should not confine myself to focusing on whether or not the Judge has committed an error of law, or some procedural error in reaching his judgment.
[29] As her Honour observed, the principles espoused by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar apply to general appeals.11 The appellate Court is to form its own view of the merits, however, an appellant must still show the decision under appeal is wrong.12 Elias CJ summarised the position of the appellate Court:13
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.
Grounds of appeal
[30]Ms Green appeals the following grounds of appeal, that the Judge erred by:
(a)finding the children were habitually resident in Australia at the time of removal (under s 105);
(b)finding there was no grave risk that return would expose them to physical or psychological harm, or otherwise place them in an intolerable situation (under s 106); and
(c)failing to hear Ms Green because the hearing was on a time-limited basis.
11 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
12 At [4]–[5].
13 At [16].
[31] At the hearing before me, Mr Cochrane for Ms Green focussed principally on the second ground, that there was a grave risk that the return of the children to Australia would place them in them in an intolerable situation, principally a financial one. Mr Cochrane acknowledged that this ground was the principal ground of the appeal. If I was not persuaded that there was a grave risk as submitted, essentially the appeal was at an end.
[32] Nevertheless, Mr Cochrane pursued the habitual residence ground but did not advance the third ground at the hearing. These grounds, however, and the parties’ positions in relation to each, are addressed below.
Were the children habitually resident in Australia before their removal to New Zealand?
[33] Ms Green submits the Judge erred in finding the children were habitually resident in Australia prior to their removal. She identifies that there is an abundance of evidence establishing that the children were not habitually resident in Australia and they had lost that status some years before she removed them. Ms Green points to the time in 2014, when Mr White lost his job through failing a drug test at his place of employment. They agreed they would move with their children to New Zealand when their eldest child turned four, in April 2018. Although they acquired properties in Australia, Ms Green says this did not alter the plan that the future residence was intended to be New Zealand.
[34] In support of the submission that there was an agreement between Ms Green and Mr White to return to New Zealand in 2018, Mr Cochrane referred to the Family Court memorandum which he prepared, detailing the historical evidence on the parties’ positions in relation to moving to New Zealand. In a detailed review of the affidavit evidence filed in these proceedings, Mr Cochrane points to two emails in particular:
(a)On 3 December 2017, Mr White said, “I’d considered moving to New Zealand”; and
(b)Mr White agreed that in 2014 when he lost his job, “We did consider moving to New Zealand for better employment opportunities.”
[35] The Authority, on behalf of Mr White, refutes the claim that the children were not habitually resident in Australia immediately before their removal to New Zealand. The Authority points to the evidence which demonstrated that Mr White had not agreed to any relocation and the bringing of the children to New Zealand was undertaken “quite surreptitiously.”
Analysis
[36] The basis for Ms Green’s submissions that the children were not habitually resident in Australia before their removal arises from the authorities of the concept that a new habitual residence requires a settled purpose and actual residence for an appreciable period.
[37] Both parties relied on the Court of Appeal’s decision in SK v KP, where Glazebrook J said of the concept of settled purpose for defining habitual residence:14
[73]One of the important concepts in habitual residence is that of settled purpose. It is widely accepted that the acquisition of a new habitual residence requires both a settled purpose and actual residence for an appreciable period. It is also widely accepted that a settled purpose to leave the place of habitual residence causes that habitual residence to be lost immediately. As the gaining of a new habitual residence requires a period of actual residence this means that a person can be without an habitual residence. …
[74]Where a young child is involved, the settled purpose is traditionally considered to be that of the parents … This requirement has been criticised as both detracting from the factual nature of the concept of habitual residence and as taking a parent-centred as against child- centred approach …
[75]A softening of the parental purpose test has been recognised as necessary. It has been said, for example, that courts should have regard not only to the subjective intent of the parents but also to what have been called the “objective manifestations of the intent” … Concentration on parental purpose should not be allowed to obscure the broad factual nature of the inquiry … Settled purpose, albeit important, is only one factor to be taken into account.
14 SK v KP [2005] 3 NZLR 590 (CA) at [73].
[76]Even among those who doubt the emphasis on settled purpose, however, there has been almost universal approval for the proposition that the unilateral purpose of one of the parents cannot change the habitual residence of the child. To hold otherwise would not accord with the policy of the Convention and would provide an encouragement to abduction and retention ….
[38] The Court of Appeal’s approach was affirmed by Punter v Secretary for Justice,15 to which the Family Court Judge also referred,16 where the Court of Appeal rejected primacy being given to what is called a parent-centred approach, but focussed on the settled purpose or intention of the parties.
[39] It is appropriate to note, as did the Family Court Judge,17 the summary of the legal position in New Zealand by Dobson J in Langdon v Wyler,18 where he said:
… the assessment of whether a particular country is a child’s habitual residence is a factual inquiry, necessarily tailored to the particular circumstances of the individual case. Parental purpose may be a factor, but it is not determinative. The focus is on the actual situation of the child, and his or her connection with and integration in the relevant country.
[40] On an analysis of the chronology of events and the detailed memorandum prepared by Mr Cochrane, it is plain that despite Mr White’s agreement that he and Ms Green did consider moving to New Zealand for better employment opportunities in 2014, they remained living in Australia, where they acquired two properties, Mr White obtained consistent employment, Ms Green obtained employment in two different preschools as an early childhood teacher, and no steps were taken to implement a move to New Zealand.
[41] The evidence reveals Mr White became more adamant in late 2017, when he objected to Ms Green’s wish to move to New Zealand in January 2018 because he wanted financial security before considering relocating. In November 2017, Mr White confirmed with Ms Green that he would not move to New Zealand. The Judge described this event as being of significance. As a result of Mr White’s concern, Mr White ensured Ms Green sign a letter acknowledging her agreement with him that she and the children would go to New Zealand for two weeks on an intended trip, returning
15 Punter v Secretary for Justice [2007] 1 NZLR 40 (CA).
16 [White], above n 1, at [28].
17 At [29].
18 Langdon v Wyler [2017] NZHC 7535, at [14].
on 20 November 2017, but she did not honour that agreement. Ms Green returned two weeks later, on 3 December 2017.
[42] It is also plain from the affidavit evidence, as recorded in the Family Court judgment, that upon Ms Green’s return to Australia in early December the parties had arguments about moving to New Zealand. Mr White found the children’s passports were hidden and he removed them for fear that Ms Green would take the children away.
[43] By 6 December 2017, the parties had separated, with Ms Green moving out of the family home with the children. Mr White returned home from work to find his family gone.
[44] The Judge recorded that Ms Green acknowledged that Mr White had changed his mind about going to New Zealand, on 8 December 2017, although in November, he had already confirmed with Ms Green that he would not move to New Zealand.
[45] On 22 December 2017, when Ms Green sent a text message to Mr White’s mother asking her to ask Mr White for the boys’ passports, Ms Green referred to the Court date of 31 January 2018 for the hearing of her intervention order and mentioned she will have to return when required for Court.
[46] Mr White’s mother told Ms Green that Mr White did not agree to the children going back to New Zealand because he did not trust her to return. Unfortunately, those concerns were realised when Ms Green took the children to New Zealand on 9 January 2018 without informing Mr White.
[47] The Judge focused on the children’s integration and attachment to Australia, canvassing the respective links that the elder child had to his preschools, his friendships, his music and singalong classes, and swimming lessons. The younger child, John, although born in New Zealand, having dual New Zealand and Australian citizenship, returned to Australia when he was six weeks old and had an Australian bank account and Medicare membership, just like his older brother.
[48] I respectfully concur with the Family Court Judge that there was total integration in Australian life in every sense for the parties, as well as the children. Both had had employment and had financial arrangements with a bank; they both owned residential properties; they established friendships and family connections; and had holidays back and forth to New Zealand to maintain a connection with Ms Green’s side of the family.
[49] Whatever plans were discussed in 2014, it is plain that there was no “settled purpose” to move to New Zealand. The evidence demonstrates that both the parents and the children had a strong connection with, and integration in, Australia prior to the children’s removal. I agree with the Judge that there was no evidence of any steps taken to implement a proposed move to New Zealand, at the fourth birthday of their older son, namely, in April 2018. No steps have been taken to sell the residential properties, and despite the evidence of Ms Green that she was looking for employment for Mr White in New Zealand, it is plain that Mr White did not agree to move to New Zealand. He was adamant about his refusal on the mother’s return in late November 2017.
[50] I am satisfied that the legal test for habitual residence has been satisfied. Australia was the habitual residence of both children immediately before their removal and this ground of appeal fails.
Is there a grave risk of an intolerable situation if the children are returned?
[51] This ground of appeal was the principal ground relied on by Ms Green. She submits the Judge erred in ordering the children’s return to Australia because of the grave risk that the children’s return would expose them either to physical or psychological harm, or place them in an intolerable situation.
[52] Dealing first with the grave risk of harm, Ms Green submits the Judge failed to consider Mr White’s drug-taking history and the implications to the children resulting from his unwillingness and refusal to provide a hair follicle test. Ms Green argues that had such a test been produced, Mr White’s use of methamphetamine would have been established. His failure to submit such a test, she submits, means the Court should have found a grave risk of harm on that fact alone. Ms Green acknowledges
her own previous drug use but identifies that she has stopped and wants him to stop for the benefit of the children.
[53] Although Ms Green made submissions to the Family Court on the unrelenting psychological violence towards her, the submission before me claims that the Judge did not assess the evidence on those matters and no finding was made regarding the credibility of her evidence.
[54] The submission that was given most emphasis by Mr Cochrane at this hearing was that children would be placed in economic hardship, if they were to be returned. He submits that the Judge did not properly consider the implications of economic deprivation on the children’s return. He submits Ms Green’s evidence should have been given more weight by the Judge, concerning:
(a)the debt Mr White is in and his likely inability to pay the money he has offered;
(b)Ms Green’s ability to obtain employment and/or obtain a social benefit; and
(c)the lack of family support Ms Green has in Australia.
[55] Mr Cochrane emphasised the disparity in benefit entitlements between New Zealand and Australia. Because Ms Green is not an Australian citizen, she is not entitled to legal aid assistance for her Family Court proceedings or the same assistance with living allowances, as is available to Australian citizens. The absence of financial assistance, he argues, will result in economic hardship, which has a grave risk of being intolerable if the children are returned.
[56] Ms Green also submits that Mr White’s evidence lacks credibility and the Judge erred, it is submitted, in preferring Mr White’s evidence on his ability to provide financial assistance to Ms Green. Essentially, Ms Green submits Mr White cannot and should not be believed about anything he says and her evidence should be preferred.
Analysis
[57] Ms Green relies on s 106(1)(c)(i) and (ii) in this appeal. In Mikova v Tova, Palmer J summarised the relevant factors to take into account when assessing grave risk under s 106:19
(a)The legal focus is on the risk to the child who has been abducted, not on the risk to the abducting parent.
(b)The psychological harm, to which there must be a grave risk that a child would be exposed, must be substantial and more than merely transitory. The standard is high and stringently tested.
(c)A grave risk of being exposed to an “intolerable situation” is not the same as being exposed to physical or psychological harm since it is qualified by “otherwise”. For example, it may include a grave risk of substantial deprivation of other necessities of life or of breach of other human rights.
[58] Of the grounds for refusing to make an order returning a child under the Hague Convention and this section, Tipping J, for a majority of the Supreme Court in Secretary for Justice v HJ, observed:20
[40] This said, all the exceptions must be approached with an understanding of their shared context, within a Convention that has the general purpose of deterring child abductions. That is achieved by ensuring prompt return in cases where no ground to refuse return is established. When such a ground is established the Convention envisages an inquiry into whether its deterrent purpose should prevail over the interests of the particular child or children.
[41] The core working provisions of the Convention illustrate these matters. The States parties wished to provide a mechanism by means of which children wrongly removed from one country to another were ordinarily to be subject to prompt return. As we have already indicated, the purpose of that return is to enable the relevant authority in the country of habitual residence, rather than the authority in the country to which the child has been removed, to decide what is best for the child’s future. The States parties recognised, however, that in some circumstances it might not be appropriate to order return. The proposition that prompt return was generally the best course to take was therefore made subject to the exceptions described above. The Convention nevertheless provides for a general discretion to order return, even when an exception is established. This requires the judicial authority in the requested State to balance against the interests of the children any feature in the case which might require those interests to yield to the deterrent purpose and other policies of the Convention.
19 Mikova, above n 10, at [35] (footnotes omitted).
20 Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289 (footnote omitted).
[59] The authorities emphasise that the onus s 106(1)(c) places on a party is a high onus, as is the gravity of harm that must be established as a ground under s 106(1)(c).21 To satisfy “grave risk” under the subsection, the focus must be on the children and not the abducting parent.22
[60] Mr Cochrane accepted that the threshold for establishing a grave risk of an intolerance situation was high. Nevertheless, he urged the Court to have regard to Article 18 of the Convention on the Rights of the Child, where in Part 18(2), the States Parties covenant that they must render appropriate assistance to parents and legal guardians in the provision of services for the care of children.23 Article 18(2) reads:
2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.
[61] It was accepted by both counsel that there is economic disparity between the Australian and New Zealand benefit and financial services, and that Ms Green, as a New Zealand citizen, is not entitled to the same economic benefits as an Australian citizen. On the evidence before the Family Court Judge, based on a report from an Australian lawyer, Ms Green was, at best, going to have approximately AUD295 per week or AUD590 per fortnight, if she was back living in Adelaide. Mr Cochrane was critical of the Judge’s conclusions that there was no evidence before the Court as to how Ms Green had calculated her benefit to be AUD510 per fortnight. Even with AUD295 per week, Mr Cochrane submits that that would not even pay rent, and would be insufficient to buy anything else. He points to Ms Green’s evidence before the Family Court that when she lived in Australia with the two children, in emergency housing, she was receiving AUD200 a fortnight.
[62] At the hearing before me, both counsel referred to the international custody dispute payment, which is a benefit New Zealand citizens can access when they have been ordered to return children to the jurisdiction of habitual residence. Ms Green has
21 KS v LS [2003] 3 NZLR 837 (HC) at [79].
22 Adams v Wigfield (1993) 11 FRNZ 270.
23 United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).
described in an affidavit that she had doubts she would be eligible for any payment, because she had to first exhaust all financial resources reasonably available to her and take steps to pursue other financial support, such as spousal maintenance, employment, or child support.
[63] Although Ms Green challenges the credibility of Mr White, his lack of trustworthiness, his failure to keep up the mortgage payments, and the financial realities of his current circumstances, the Judge concluded that “on the face of it, there is adequate financial assistance available in Australia” from both the Australian authorities and the applicant.24 The Judge recorded that this includes the availability of rent-free accommodation, namely the family home, which is not only a familiar place for the children but had been offered by Mr White to Ms Green for her and the children’s accommodation.
[64] The Judge made specific directions regarding the father’s offer to meet costs, including the air travel to Australia, the provision of accommodation rent-free, and the payment of at least AUD200 per week, either directly to her or through the Australian child support agency. There is Medicare available, and a low-income healthcare card available. In addition, there is ambulance cover for her and the children if his employment is current. The Judge recorded that Ms Green has the ability to receive a New Zealand international custody disputes payment whilst living in Australia, obviously if the eligibility criteria are met.
[65] Although it appears Ms Green does not have access to legal aid or legal assistance to conduct her Family Court proceedings in Australia, Ms Green did commence proceedings for an interim intervention order in Australia. It appears there were financial resources available to her to pursue orders in the Family Court in Australia.
[66] Further, given the equity which Ms Green and Mr White both have in Australia through the ownership of their family home and an investment property, there is a sufficient financial resource, together with the wages of Mr White, to ensure that there is no financial hardship suffered by the children on their return. I do not consider that
24 [White], above n 1, at [78].
the threshold has been reached under s 106(1)(c)(ii) that there is a grave risk that the children’s return would place the children in an intolerable situation through financial hardship. I consider the Judge’s conclusion to be sound and the defence in s 106(1)(c)(ii) has not been made out.
[67] For completeness, I turn to the submission that Mr White’s credibility is in issue and was not properly considered by the Judge, when considering Mr White’s risk of using methamphetamine and risk of harm towards the children. Ms Green alleges there has been an increase of at least AUD11,000 in Mr White’s indebtedness across various bank loans in respect of the rental property and the family home, and she “speculates” he is spending his money on illicit drugs as opposed to reducing the mortgage. Further, Ms Green alleges that Mr White has perpetrated physical and psychological violence against her.
[68] I note that Mr White refutes the allegations that he has perpetrated any violence, but when he appeared in the Australian Family Court to be heard in opposition to the making of an interim intervention order, Ms Green and the children had already left Australia.
[69] The issues of credibility of the parties in respect of their past relationship and any allegations of violence should be addressed in the appropriate hearing in the Australian Courts. This Court, on appeal, cannot resolve such factual issues. Similarly, if there are risks that Mr White is using methamphetamine, which may impact his interaction with the children, that is an issue that should be dealt with specifically by the Family Court, in respect of the proceedings which have already been issued.
[70] In making the orders for the return of the children, the Judge had also taken into account the ability for Ms Green to pursue proceedings for relocation. The Judge said:25
If Family Court proceedings for relocation are expedited, or the undertaking given, and accepted for a return to New Zealand pending a hearing then the actual time the respondent may be back in Australia could be brief.
25 [White], above n 1, at [79].
[71] It is at such a hearing that the financial abilities of Mr White to provide adequate support for Ms Green and her children can be explored, as can the issues of family support available to each of the parties, either in New Zealand or in Australia.
[72] I respectfully concur with Simon France J in COL v LRR, where he described the Australian Family Court system and its place in the context of Hague Convention cases such as these. He said:26
I consider it important to recognise the home country here being talked about is Australia which has a Family Court system and structure similar to ours and which is governed by the same principles. It is a short distance away and its systems afford no basis for any hesitation by a New Zealand court about ordering return.
[73] I do not find that the risks to the children of returning to Australia are so grave that they will be exposed to physical or psychological harm, or otherwise place them in an intolerable situation. The appropriate forum for addressing allegations between Ms Green and Mr White is the Australian Family Court, and if that Court decides that a relocation order is appropriate, then it is important that that matter is the subject of a hearing in which both parties can properly participate.
[74] The evidence demonstrates that Mr White has played an active part in the children’s lives and consistent with the Hague Convention, the children should be promptly returned to ensure that rights of custody and of access under Australian law are effectively respected.
[75] As the authorities observe, the Hague Convention is a “strong international convention to which New Zealand is a signatory” which has the purpose of deterring the unlawful removal of children and ensuring their prompt return.27 McGrath J in Secretary for Justice v HJ reinforced the importance of the Hague Convention as follows:28
The Hague Convention has been described as a “groundbreaking” instrument, providing a “mechanism for the summary return of wrongfully removed and retained children and … establishing channels of co-operation between contracting States to facilitate and expedite return applications”. The main
26 COL, above n 10, at [24].
27 At [34].
28 HJ, above n 20, at [121] (footnotes omitted).
object of the Convention is to ensure the prompt return of children wrongfully removed to or retained in any Contracting State. A removal will be “wrongful” where it is “in breach of rights of custody attributed to a person, an institution, or any other body, either jointly or alone …”. “Wrongful” thus means that a removal is contrary to the applicable custody law, and takes no account of particular reasons for the abduction, such as domestic violence. The rights of custody with which the Convention is concerned are defined to include rights to the care of the child and to determine the child’s place of residence. These rights may of course be enjoyed by a parent who does not have custody of the child.
[76] These observations by McGrath J and the Supreme Court serve as a reminder that allegations of grave risk, whether they be domestic violence, financial hardship, or physical or psychological harm, need to be dealt with in the country from where the children have been removed. In this case, Mr White has played a parental role in the lives of these children, and removal of the children is wrongful, where it is in breach of the remaining parent’s rights of custody and of access. Here, Mr White deserves an opportunity to defend any proceedings brought by Ms Green. The ultimate determination needs to be made after a consideration of all relevant issues at a Family Court hearing. That hearing should be in Australia, where proceedings have already been commenced.
[77]I find the defence in s 106(1)(c)(i) has not been made out.
Was Ms Green properly heard before the Family Court?
[78] The last ground of appeal concerned the abbreviated hearing of this matter in half a day only, on short notice to counsel, when a day hearing had been allocated.
[79] This ground of appeal was not addressed at the hearing before me and did not form part of counsel’s oral submissions. I make the observation that the Judge had a considerable amount of written materials, submissions and evidence before her, to which she referred in delivering her decision. I do not consider this ground any further, and dismiss it.
Result
[80]Ms Green’s appeal is declined.
[81] The Judge’s finding that the children were wrongly removed from Australia and their return is required is correct.
[82]The orders and directions made by the Family Court remain extant.
[83]There will be no order as to costs.
Cull J
Solicitors:
C & M Legal, New Plymouth for the Respondent
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