Red v Red
[2016] NZHC 340
•3 March 2016
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CIV-2015-476-000056 [2016] NZHC 340
IN THE MATTER OF in the Care of Children Act 2004 in the
ratification of the Hague Convention on
the Civil Aspects of Child Abduction 1980BETWEEN
N R RED Applicant
AND
T Y RED Respondent
Hearing: 25 February 2016 Appearances:
D J More and C J Medlicott for the Appellant
I M Mitchell for the Respondent
C M Doyle for the ChildrenJudgment:
3 March 2016
JUDGMENT OF NATION J
Introduction
[1] In the first half of 2013, when the parties and their three children were living in Western Australia, they separated. On 22 October 2014, the mother applied to the Australian Family Court for an interim violence restraining order against the father. Such an interim order was made on 27 October 2014. On being served, the father filed a notice of defence. On 19 January 2015, both parties were present in a court in Western Australia. The father raised an issue over his contact with the children. No
agreement was reached despite the Magistrate’s efforts. It was agreed there would
RED v RED [2016] NZHC 340 [3 March 2016]
be a hearing as to the restraining order proceedings on 22 April 2015. On 24
February 2015, the mother and children left Australia for New Zealand. By then, the family had been living in Australia, apart from certain minor breaks, for some seven years.
[2] On 25 February 2015, the father filed a parenting order application in the Family Court in Australia. In early March 2015, on attempting to serve the proceedings on the mother, he found she and the children had moved from their home. Later he was told they were in New Zealand.
[3] On 27 July 2015, with the support of the Australian and New Zealand Central Authorities, the father filed an application with the Family Court in Timaru seeking the return of the children to Australia under the terms of the Hague Convention (the Convention) and the associated provisions of the Care of Children Act 2004.
[4] On 30 September 2015, Judge Turner in the Family Court released a brief decision determining that the mother had wrongfully removed the children from Australia.1 He made orders, under the Convention provisions of the Care of Children Act, for their return to that country. The Judge issued a further judgment giving full reasons for his judgment on 16 October 2015.2 On 5 November 2015, he made further orders as to how that return was to be implemented.3
[5] The mother has appealed against the judgments of Judge Turner. In that appeal, she is supported by counsel for the children.
[6] To protect the identities of the family and the children, I have entitled these proceedings (and anonymised related proceedings as) Red v Red. The children in the family are a boy born in 2004, a daughter born in 2007 and a daughter born in 2009. I often refer to the eldest child. To protect his identity I refer to him as “W”.
[7] Although I have not met with these children, there are photographs of them amongst the documents I have seen. I have also observed W through a recent video
1 Red v Red [2015] NZFC 8506 [Initial Decision].
2 Red v Red [2015] NZFC 8588 [Reasons Decision].
3 Central Authority on behalf of Red v Red [2015] NZFC 9584 [Implementation Decision].
interview lasting almost an hour. Although evidence as to the names or identity of the parties and their children is suppressed, I am of course conscious that the issues on this appeal are of great importance to each of the parents and each of these particular children.
Approach on appeal
[8] The appeal is brought under s 143 of the Care of Children Act (the Act). The appeal is a general appeal.4 The principles are set out in the Supreme Court judgment of Austin, Nichols & Co Inc v Stichting Lodestar.5 As summarised by Mr More for the mother, these are:6
(a) the appellant bears an onus of satisfying the appeal Court that it should differ from the decision under appeal;
(b) it is only if the appellant Court considers that the appealed decision is wrong that it is justified in interfering with it;
(c) the extent of the consideration an appeal Court, exercising a general power of appeal, gives to the decision appealed from is a matter for its judgement; and
(d) on a general appeal, the appeal Court has the responsibility of arriving at its own assessment of the merits of the case.
The Family Court proceedings
[9] In terms of s 105, there was no dispute that:7
(a) the children were present in New Zealand;
(b) the children had been removed from Australia, a party to the Convention,
in breach of the father’s rights of custody in respect of the children;
4 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
6 At [4]-[5].
7 Care of Children Act 2004, s 105.
(c) at the time of the removal, the father was exercising those rights or would have but for the removal; and
(d) the children were habitually resident in Australia before the removal.
[10] The mother argued the Court could refuse to order the children’s return on the basis the father had consented to their removal.8 The Judge found there had not been such consent. There is no appeal against that decision.
[11] The mother also argued against an order for the children’s return on the grounds there is a grave risk that the children’s return:
i) would expose the children to physical or psychological harm;9 or ii) would otherwise place the children in an intolerable situation.10
[12] As summarised by Judge Turner, the mother’s case was that:11
… returning the children would expose them to a grave risk of physical or psychological harm. She specifically alleges that she and the children, [W] in particular, were subjected to physical and psychological abuse by the father. She refers in her affidavits to a variety of incidents where she alleges he assaulted her and/or [W], including being tasered and [W] having his arm broken. In discussions with lawyer for the children and myself, [W] referred to his father hitting him with a baseball bat, tasering him and breaking his arm.
[13] On the appeal, for the mother, Mr More still argued the evidence in relation to these allegations was such that the Judge should have found that ground was established. For the children, Ms Doyle contended that ground could be made out but on a basis different from the one counsel for the mother put before Judge Turner.
[14] Referring to relevant authorities, Judge Turner said the principles against which this defence had to be considered could be summarised as:12
8 Section 106(1)(b)(ii).
9 Section 106(1)(c)(i).
10 Section 106(1)(c)(ii).
11 Reasons Decision, above n 2, at [57].
12 At [51], citing A v Central Authority for New Zealand [1996] 2 NZLR 517 (CA); HJ v Secretary for Justice [2006] NZFLR 1005 (CA).
(a) The Convention is concerned with the appropriate forum for determining the best interests of the child;
(b) The focus is on the situation of the child and not of that of the abductor; (c) For the risk to be grave it must be weighty and the onus on the party is
high, meaning it is a difficult defence to make out;
(d) An order for the return of the child to his or her country of habitual residence is not an order that the child be returned to the care of the applicant. The person seeking to rely on this defence must satisfy the Court that the return to the country will threaten the child’s safety because protection cannot be provided for the child on his or her return.
No party suggested there had been any error with regard to that summary.
[15] The Judge concluded that the mother had not established, on balance, that the children would be exposed to a grave risk of harm or an intolerable situation if they were returned to Australia, either with or without her accompanying them. In reaching that decision, he expressly referred to a number of matters:13
(a) the father’s denial of the allegations;
(b) although the mother had obtained interim violence restraining orders, none of them had proceeded to a hearing where a Judge had determined the accuracy of the allegations;
(c) in situations where it might have been expected, there was no material to substantiate her claims, for example, school records to establish W’s claimed absence from school or an x-ray to establish his claimed broken arm;
(d) the existence in Australia of a legal jurisdiction which placed the best interests and welfare of a child as the paramount consideration; statutory agencies responsible for addressing care and protection issues; a range of welfare agencies including Women’s Refuge who could provide support for victims of domestic violence; specialists available to address children’s particular medical, psychological and educational needs; and a
Family Court system which could be accessed to determine issues involving the children and their protection;
(e) no evidence that the father has a criminal record or that he has ever been arrested or charged over the incidents the mother has alleged against him;
(f) while there would be an upheaval for the children as a result of a return, that was an inevitable consequence of the application of Convention principles and arose out of the wrongful removal of the children from their habitual place of residence;
(g) the mother’s previous history indicated she had an ability and willingness to access appropriate welfare and protection services in Australia and the Australian judicial system; and
(h) there were a significant number of family members in Western Australia and appropriate Australian agencies who could provide care and support for the children pending determination of the Family Court proceedings which had already been filed there by both the mother and father.
[16] The mother also contended that the children objected to being returned, had each attained an age and degree of maturity at which it was appropriate to take their views into account and it was appropriate to give weight to the children’s views.
[17] Referring to authority, the Judge said a four-step process was involved:14
· Does the child object to return? If so;
· Has the child obtained an age and maturity at which it is appropriate to
give weight to the child’s views? If so;
· What weight should be given to the child’s views? And;
· How should the residual statutory discretion be exercised?
[18] The Judge referred to authority that, in considering these steps, it must be in relation to the particular child, the particular child’s family and that child’s particular circumstances.15
[19] All parties accepted that his approach as to how he should deal with this particular defence was correct and in accordance with the authorities. The Judge carefully referred to the particulars of each child and the views they had expressed. He decided each of the children had expressed a clear objection to returning to Australia. He then considered particular information relating to each child, including what he had learnt from his own discussions with each of them. In respect of each child individually, he found that they were not of such an age and maturity that it would be appropriate to take that child’s views into account. With each child individually, he also considered that, for the reasons referred to in his judgment, little weight could be given to their respective objections.
Additional evidence
[20] All parties had filed applications for leave to adduce further evidence pursuant to r 20.16 High Court Rules. For the father and the Central Authority, Ms Mitchell sought leave to put before the Court a third affidavit from the father outlining:
· his residency status in Australia;
· his intent regarding the Family Court proceedings currently before the
Family Court of Western Australia;
· arrangements for the care of the children;
· arrangements for the education of the children and supports available to the children through the school or their GP;
· documents supporting the timeline outlined in the earlier evidence adduced by the Respondent and the care arrangements for the children;
· attendance records for [W] at school from June 2011 through to
December 2013; and
· evidence as to his character.
[21] She also sought to put before the Court an affidavit from an Australian solicitor, Mira Daniella Green, providing evidence as to the legislative framework within which child protection issues would be considered in Western Australia and the extent to which each state had well-established child protection authorities, sophisticated policies and systems in place to protect children who were considered to be at risk of abuse or neglect.
[22] Counsel for the children sought to put before the Court:
· a report dated 2 February 2016 from a psychiatrist, Dr Watt, as to potential risks of a return in connection with W; and
· a DVD and intended transcript of a video interview that had been conducted on 3 November 2015 (no transcript was in fact made available when the appeal came on for hearing).
[23] Counsel for the mother sought leave to put in a brief affidavit from the
mother responding to certain statements made in the father’s affidavit.
[24] Ms Doyle, as counsel for the children, and Mr More, for the mother, agreed leave should be granted. Ms Mitchell, for the father, did not strongly oppose the other parties’ applications but expressed some reservations as to whether the psychiatrist’s report or interview could be considered fresh or not reasonably available as at the time of the earlier hearing, given the matters to which they related had all been brought to Judge Turner’s attention at the time of that hearing. On the hearing of the appeal, I indicated I would provisionally consider the evidence but would make a final determination as to whether to admit these documents with this judgment.
[25] In the particular circumstances of this case, I have admitted all this evidence. I have also allowed the psychiatrist’s report to be put before the Court without an affidavit from the psychiatrist. I did have some real reservations over that report and the DVD interview on the basis that such material could have been obtained and produced at the original hearing. In the particular circumstances of this case, I do
not consider any of the parties will be or have been prejudiced by my having regard to the psychiatrist’s report and the evidential interview. Through seeing the DVD, I have also been able to see for myself how W dealt with the interview and the information that was forthcoming from it.
[26] I have been able to read and see for myself all the affidavits and associated documentary material which was before the Family Court. I have had the benefit of a detailed summary of the Judge’s discussions with the children, prepared from notes made by counsel for the children. I have a transcript of the exchanges that took place between counsel and Judge Turner when the hearing in the Family Court took place on 30 September 2015.
[27] As noted above, I did not meet with the particular children. Both Mr More, for the mother, and Ms Doyle, for the children, indicated that the children could be available to meet with me should I want this. I explained to counsel that I was reluctant to do so if it was accepted that their views had been correctly recorded in Judge Turner’s decision. I was concerned that, if I met with them, it could reinforce a feeling that each of them, but particularly W, might have that they might be responsible for the ultimate outcome on the appeal.
[28] When making her submissions, Ms Doyle confirmed that the children’s views had been accurately reported by her to the Court. She said she had discussed Judge Turner’s decision with the children and they understood and accepted that their views had been put clearly to the Family Court and had been recognised and considered by the Judge. She thus accepted that it was not necessary for me to meet with them to ensure their views were considered and taken into account, as required
by s 6(2)(b) of the Act.16
[29] Mr More suggested that my meeting with at least W might assist in the determination which I was required to make, independent of the assessment made by Judge Turner, as to whether he was of an age and maturity that was appropriate to consider his views. While I acknowledge that a meeting with him may have been of
some limited assistance in this regard, I had the benefit of the summary of Judge
16 Care of Children Act 2004, s 6(2)(b).
Turner’s discussion with W. Even if, as a result of my meeting with W, I would come to a different view as to his maturity, the weight to be given to his views would have required me to give careful consideration to all the evidence. After hearing all counsel’s submissions, I concluded it would not be necessary or beneficial to the children for me to meet with any of them and I advised counsel accordingly.
Certain evidential issues
[30] The arguments advanced on appeal, both for the mother and for the children, are based on serious allegations of physical and psychological abuse against the father. Those allegations are relied upon in arguing that the children would face a grave risk if forced to return to Australia. The allegations are also relevant in that they are the basis for objections to return expressed by the children, particularly W.
[31] While neither Judge Turner in the Family Court nor I have to decide whether those allegations are true, the state of the evidence as it stands is relevant to the decision which I must come to. All the evidence, which both parties wish to rely upon in relation to both the allegations made against the father and other issues, will have to be tested carefully when issues as between the parents are finally determined. At this stage, given the necessarily summary nature of these proceedings, I highlight the evidence as it stands in relation to three particular issues.
W’s allegation that the father tasered him
[32] In her application for a violence restraining order filed in the Family Court at Armadale, Western Australia in May 2015, the mother made the general allegation that the father was extremely violent, he had displayed domestic violence towards herself and in front of the children and had used domestic violence towards the children. She referred to an incident in October 2010 when she claimed the father had allegedly thrown a bag of pebbles at his younger daughter after she brought them into the house. She said nothing about him using a taser either on her or the children.
[33] In her affidavit of 30 April 2015, in support of a without notice application for an interim parenting order and an order preventing removal of the children from
New Zealand, the mother said the father had used domestic violence towards the children, spoke of the angry and abusive way he had spoken to the children but made no mention of any incidents involving the use of a taser.
[34] In the mother’s affidavit of 31 August 2015 in opposition to the Convention application for the return of the children, she said:
After the children were first extradited until the applicant and I separated for the final time, the applicant would often taser me while I was in the shower or in bed. I would be unconscious following that, sometimes until the next morning. He would tell me I had a seizure. I know that is not correct as I vividly remember the applicant coming into the bathroom, grabbing my head and tasering the back of my neck. I would wake up with bruises on my body. I do not get bruises on my body from a seizure.
She did not mention the father directing the taser at any of the children.
[35] In the mother’s second affidavit of 11 September 2015 in opposition to the application for return, she said the children would often see him assaulting her and they had witnessed him tasering her “on uncountable occasions, his punching me in the head and body, dragging me to the room”.
[36] In referring to W in particular, the mother said there was one occasion when the father was using a taser gun on her, W came into the room and tried to grab the father. She said the father pushed him away, resulting in W’s arm being broken and, following the incident, W “had a month off school and the father told the school he had injured himself in a car accident”.
[37] Neither counsel for the children nor the school principal, who had been present when Ms Doyle had interviewed the children on 11 September 2015, reported any of the children saying they had been tasered.
[38] In the discussion with the Judge, W said his father had whacked him over the legs with a wooden baseball bat when he stopped doing the dishes, that he was punched and bashed when he did not help his father take off his boots or massage his feet and that his father once got a belt and whacked him over the face. W was asked to describe the worst incident. The transcript is as follows:
“When I got tasered by a taser gun. It was at night time. We were living at Fern Road. The next day dad tasered mum. I knee’d him in the tummy and then he tasered mum. He went and broke my arm. He snapped it. He didn’t let me see a doctor or go to school. He went online to a site “Gumtree” and bought a medical kit. He used it to put a cast on my arm. I wasn’t allowed to go to school for a few months. This would have happened when I was seven or eight years old.”
“When the taser gun was used on me, I blacked out. He just pointed at me and something came out of the gun and hit me in the chest. Mum said I started going like that [indicates wiggling, jerking movement] and then blacked out. I slept then and didn’t wake up again until the next morning. Dad kept the taser in the wardrobe but I think he must have thrown it out. The police did come once when there was a robbery. I tried to show them where the taser was, when they were there for robbery but it was gone. This only happened once.”
[W] explains that Dad punches Mum over her head and stuff and tasers her. This might be why Mum has the electric [sic] fits. [The grandfather] thinks it may be the tasering that is the cause of these fits.
[His grandfather] said if I ever saw him do that to Mum I [sic] would kill.
Judge asks, “When was that conversation?” [W] replies, “When we found out about the case. Mum told [the grandfather] about the tasering and that’s when [the grandfather] said, if he ever saw Dad do that, he would kill him.
[39] Ms Doyle, as counsel for the children, was present when W gave this account. She said he physically demonstrated how the taser was directed at him in the chest. Although it does not appear in the summary, during submissions the Judge commented that he had asked W if any marks had been left by the taser. W told the Judge he did not check to see if there were any such marks.
[40] After the Judge had made his decision requiring the children to be returned to Australia, a person assisting the family in New Zealand arranged for W to be interviewed by someone from Child, Youth and Family (CYFS). It was in the nature of an evidential interview. A transcript of that interview was not available at the hearing of the appeal but the DVD recording has been seen by counsel for the children. I have also watched it.
[41] After the initial introduction, the interviewer asks W what he has come to talk about. He responds to the effect “Dad tasered mum and beat her up when she didn’t obey his orders”. Later in the interview, after being taken through his father allegedly tasering him, W says to the interviewer that he has not seen his father
tasering anyone else. He does describe two incidents of seeing his father punch his mother; one after she had tipped a jug of water on the father which W says his mother meant as a joke; the other was an occasion which began when he heard his mother yelling at his father.
[42] W described an occasion when the family were living together and he refused to do dishes. He describes his father swinging an arm at him and his hand slapping him in the face, then kicking him in the thigh and then being carried to his room and told he would have to stay there until he agreed to do the dishes. W says his father shut the door but came in later and asked if he was ready to do the dishes. W did the dishes and then went back to his room and went to sleep. At another point, he said this had happened in the morning when he was having his Weet-bix. He said he could not remember when it was but thought it would have been in about 2010 or
2011 when he was six or seven.
[43] W did say his father had used the taser on him. Whether or not his account is true will have to be assessed very carefully through a close examination of what he said and how he came to say it. Given that W says no one else witnessed what happened, what the father has to say about it will be important.
[44] Although I have not had the benefit of a transcript, my viewing of the interview suggests caution should be exercised before the disclosure is relied upon as a basis for radical intervention with the family.
[45] At the beginning of the interview, W says that one of the incidents he is there to talk about is being tasered. At that point, he describes a point on the taser being physically pushed into a spot near his ankle. Later, when he was being taken through the incident in detail, he says he saw a box in his father’s bedroom and in there an item like a drill but bigger, and running to tell his mother. He says his father came out into the hall or passageway and told him to stop. He says he did not see his father with the taser at that point but that he was tasered on the ankle. He indicated that his father was not near him at the time. He was asked as to what he could remember after that. He says at several points that he cannot remember but is nevertheless asked what he felt and describes feeling hurt. He says he blacked out
and cannot remember what happened but went back to sleep and woke up in bed. He was pretty sure it happened in the morning.
[46] In a number of respects, going to the central detail of what happened, W’s account in the interview is significantly different from that which he gave to the Judge.
[47] Given the potential for the way adults have spoken about the father to have influenced W’s recollections and statements, it may be significant that, in the interview when he was asked as to who he first told about the incident, W described his grandfather coming to be with them in Australia, his hearing his mother tell his grandfather “about what happened with Dad and stuff”. Although it appears from the interview that this was the context in which W came to tell his grandfather, there was no further questioning from the interviewer as to what happened after he heard his grandfather and mother talking and how this led to him telling his grandfather that he had been tasered.
[48] Later in the interview, the interviewer began asking him about another potential occasion when the marks had been made on his leg. W clarified there was not a separate occasion but said there were marks on his leg and they had not been there before the taser had been used. In the interview, W was given several opportunities to see if he could remember if anything else happened. He was also asked to describe the worst thing that happened to him. He said it was the tasering. He made no mention of having his arm broken.
[49] After saying he could not remember but being pressed by the interviewer to provide further information about the incident, W said he has a headache. That may be because, at that point in the interview, he was being asked to describe an unpleasant experience (although this was not readily apparent to me). It could also be that he had a headache because he was being pressed to give detailed information about an event he was not sure of or possibly even knew may not have happened.
[50] In his second affidavit of 15 September 2015, the father has said:
I do not have access to a taser. Throughout my career in the security industry I have never been given training on such devices. They are illegal in Australia to my knowledge. I have never touched a taser. I would not know where to find one if I wanted one.
How the children came to leave the father’s care and the extent to which they
were in his care during 2013
[51] In his affidavit of 27 July 2015 in support of his application for the return of the children, the father said he had cared for the children independently of their mother for about three months in mid-2012 when the mother went to New Zealand leaving the children with him. He said he also cared for them from April 2013 until
29 December 2013 because they had separated, the mother had moved out of the home, was working 70 hours per week and rarely saw the children.
[52] In her affidavit of 30 April 2015 filed in support of the without notice applications in the Family Court at Timaru, the mother said the father had kicked the children out of the house, texted her to come and collect them and told the children to “F-off. I have a new family now.” In her first affidavit of 31 August 2015 opposing the application for the return of the children, the mother said that, on 10
May 2013, the father agreed to her taking the two older children with her and to their returning to New Zealand in her care. She said the next day she received a text saying he had kicked the children out, she came and collected the children and they had remained in her care from then on. She repeated this in her second affidavit of
11 September 2015 in opposition. She said he had contact with the children only once during the following two years, that contact being in late 2013 after his father had died.
[53] In his second affidavit of 15 September 2015 in support of his application, the father says that he did not tell the children to leave in May 2013 and they remained in his care. I have given leave to the father to file a further affidavit in this Court. In an affidavit of 19 January 2016, he produces the mother’s application for divorce made in the Family Court of Western Australia dated 30 October 2014. In it, she lists her residential address although at that point on the form there is the advice “If you have safety concerns, you do not need to disclose a residential address”. In that application she says the date of separation was March 2013, that the father had the
children for approximately 104 days of the year, she had them for 261 days of the
year and that she now had “full custody” of the children since 24 August 2014.
[54] A child support assessment of 16 October 2014 was made on the basis the children were in the care of their mother for 72 per cent of the time and the father 28 per cent of the time.
[55] With the father’s second affidavit of 15 September 2015 was an email letter, apparently genuine. It was from a young French woman. She said she had a live-in nanny position with the father from July 2013 to December 2013 when she went back to France and that over this time she looked after the children while the father worked as a security officer. (One of the children told the Judge that this person had been a nanny to them.) During the time this person says she was a nanny for the children, she says she saw the mother approximately three or four times when she visited the children for short periods and that, in the first months when she was working with the children, she asked the children where their mother was. Significantly, given the emphasis on W in these proceedings, she wrote “he did not want to speak about it (he seemed to be upset)”.
[56] The father also reproduced text messages of 18 September 2014 and 5
October 2014 which are consistent with the father having had contact with the children in the months before that and of him then wanting more contact with them. One of the children mentioned to the Judge that she had stayed with her father after he was living with his new partner.
The allegation that the father broke W’s arm
[57] The allegation that the father broke W’s arm and that he was away from school for a lengthy period as a result, is an allegation of serious violence. If W’s account to the Judge, as to how the father avoided obtaining appropriate medical treatment for the injury by himself making a cast for the arm, is true, it would be a matter of the gravest concern to any court or agency required to ensure children are kept safe. If, however, what W described to the Judge is not true, the fact W has come to make such a serious allegation and, with it, provided what would thus have to be a contrived explanation as to why the injury was never x-rayed or treated by a
doctor, that would also be of the gravest concern. It would suggest the anxiety of those close to him in New Zealand and their hostility towards his father has pressured W in coming up with a contrived story to meet their expectation or needs, an outcome which a Judge might well consider would have to be at significant emotional cost to W.
[58] The father has said in his third affidavit that, while he had initially agreed in the Perth Court to apply to see the children while they lived mainly with their mother, in light of what he described as “alarming events”, he is of the view the children need to have a closer relationship with their father. He has thus applied in the Family Court in Western Australia for day-to-day care/custody of the children.
[59] The evidence before the High Court, through the father’s third affidavit, now includes records of school attendance for the two older children. Those for W begin on 30 May 2011 through until 16 December 2013. Those records reveal regular consistent attendance, with very few days away from school and never for more than two days at a time. The records produced by the school show W was away from school on the first day after a school holiday on two occasions in 2013, on two occasions in 2012, two occasions in 2011 and on three days on 23, 24 and 25 April
2012. On each occasion, the code suggests this could have been for a prearranged “teacher only” type day. This is confirmed by school calendar information for Western Australia available on the internet.
[60] In her affidavit in reply, the mother says:
With regard to paragraph 13 I no longer have a clear recollection of the exact time when the respondent broke [W]’s arm. I confirm it happened. I have been diagnosed as suffering from post-traumatic stress disorder, and that has affected my memory of incidents of violence in my marriage. I have been advised that since his return to New Zealand, [W] has told my father that his arm was broken during a school holiday and he was off school for two days at the start of the next term.
[61] While that is hearsay evidence of W having told someone else about the broken arm, it is also evidence which suggests the problem that has been created over this allegation, in light of the school records, has been discussed with W by the grandfather. This evidence also suggests that talk with the grandfather has caused W
to change what he said to the Judge to fit what he or the grandfather mistakenly thought would be consistent with the school records.
[62] In the recorded interview, in describing an alleged taser incident, W says nothing of his arm being broken at the same time. He says nothing about this happening at any other time. Nor does he mention being hit in the face with a wooden baseball bat or hit with a strap as he described to the Judge. Despite the mother’s evidence, W says he never observed his father using a taser against anyone else. This was despite the interviewer carefully and on several occasions giving him the opportunity to discuss such incidents if they had in fact occurred.
The grave risk to the children defence, s 106(1)(c)(i) and (ii)
[63] For the mother, Mr More said that the mother had made it clear she is not returning to Australia. He argued that, if issues regarding the children have to be determined by an Australian court, the issue for the Australian court will be whether the children will be safe in their father’s care and, if not, where they should reside. He said that, if the Australian court were to decide the children should be “taken into care”, which I took as being a reference to care arranged by the state, there would be no guarantee that the Australian court would afford adequate protection to the children in that situation.
[64] Mr More then suggested that, on the evidence, there is the possibility that, as a result of allegations against the father, the children would end up in state care in Australia and that I should take judicial notice of the media coverage of the way Australian authorities are holding certain New Zealanders in detention and deporting them back to New Zealand. He spoke also of media reports as to the way Australian authorities are insisting that a baby born in a detention facility should be returned there. While I am aware of those reports, they have no relevance and are of no evidential value in considering how the Australian Family Court or state agencies would deal with the children of parents who, quite lawfully, had made Australia their home and who were lawfully entitled to be there, and not subject to potential deportation.
[65] There is uncontested evidence as to the way relevant legislation in Australia focuses on the need to protect children and provides for the children’s best interests and welfare to be the paramount consideration when the courts deal with issues between parents over their care. I accept that the resources and institutions which exist in Australia to ensure children are kept safe and their interests are protected, will be available for these children if they are returned to Australia. In one of her affidavits, the mother accepted that such protection exists. On three different occasions, she has been willing to take advantage of that protection through the three separate applications she made for violence restraining orders. The father has also shown his willingness to access the Family Court in Australia to deal with family issues.
[66] Mr More also submitted that the evidence put before the Family Court and now available in this Court was and is sufficient to prove, on the balance of probabilities, that there is a risk of violence from the father sufficient to establish this defence. In that regard, he said more weight should have been given to the fact the mother has, on three different occasions, been able to provide to the Family Court in Australia sufficient evidence as to physical or psychological abuse of herself and children to justify the Family Court there issuing interim violence restraining orders. He also referred to the fact that this Court is now aware that, in an evidential interview, W has made a disclosure as to the way he claims to have been physically abused by his father through being tasered.
[67] Against all the evidence regarding these allegations which I have considered, I do not consider the making of interim violence restraining orders should be given such weight. As the Judge pointed out, whether or not the evidence justified the making of those orders has never been tested in the context of a defended hearing. The mother obtained an interim order in October 2010 and again in about January
2012. In each instance, the father filed a defence. These interim orders were both discharged after the parties reconciled and resumed their relationship.
[68] The mother left Australia, taking the children with her, before the Court could consider the continuation of the interim order obtained on 27 October 2014, although
she had been at Court when the hearing of that defended application had been arranged.17
[69] Mr More submitted that the evidence as to a taser being used, independent of the mother and particularly from W, should have been sufficient to persuade the Judge that violence had been used in that way.
[70] It is not necessary for me to determine where the truth lies in relation to the allegation over the use of a taser. On an application for the return of the children, the issue before the Court is not whether there will be a risk to the children as a result of their being returned to the father but whether such a grave risk will result from the return of the children to Australia. The present state of the evidence in relation to the use of a taser does not encourage me in any way to accept that greater weight should have been given to the fact the mother obtained interim violence restraining orders on a without notice basis.
[71] Given the serious and significant issues of credibility in connection with the mother’s evidence, I do not consider that the fact she has obtained interim violence restraining orders on three occasions on a without notice basis was or is a compelling reason for proceeding as if her allegations had to be true. They are allegations that should be fully and properly tested before a Court or any agency determines what steps should be taken to ensure the children are safe and their welfare looked after.
[72] In his third affidavit filed in the High Court, the father has given evidence of the arrangements he has made if the children are returned, as ordered by the Family Court, to Australia. He said that if social service agencies sought to remove the children from his care, he has a sister who would be prepared to assist while ultimate arrangements are made for the care of the children. He has said that, if the children are returned to Australia, they will attend Bentley Primary School. He had spoken to
the principal. He also said a psychologist would be available at the school for the
17 The mother made no mention of these proceedings or of the conference which had taken place with the Judge, the arranged hearing or the father’s request for contact as discussed with the Judge when she filed her without notice application for certain parenting orders and an order that the children not be removed from New Zealand in the Family Court at Timaru on 30 April 2015. She failed to mention those matters despite her signed acknowledgement on the relevant forms that she was required to make a full disclosure of all relevant information.
children and counselling could be available for the children. Bentley Primary School is the same school which has provided the records of attendance. (I note that, in his discussions with the Judge, W said the best of the schools which he attended was Bentley Primary.) In a child-centred way, the father has said that, if the children were permanently removed from his care, he would have to arrange for them to be returned to their mother because he believed they should remain with a biological parent if at all possible.
[73] Given the proceedings that are on foot as to day-to-day care/custody issues, on return, the Family Court in Western Australia would have to ensure that any arrangements for the care of the children will keep them safe and are in their best interests.
[74] Ms Doyle submitted the grave risk defence had been made out but on a ground different from that which Judge Turner had been asked to consider in the Family Court. She said the risk related to the potential for W to do himself real harm, even take his own life, if he has to return to Australia and the impact his death would then have on his siblings. I will deal with that submission later. Given the submission made for the mother, I do note Ms Doyle’s acknowledgement that neither the Family Court nor this Court could proceed on the basis the children would be at risk simply through a return to Western Australia, given the Australian legislation and the way the courts, government agencies and other services in Western Australia exist and are charged with the responsibility of ensuring children are safe and that in making major decisions about where they live and who they live with, the welfare and best interests of children will be paramount.
[75] Both Mr More and Ms Doyle submitted that, if the children are returned to Australia, inevitably they will end up in the care of their mother because she was the one caring for them at the time she took them from Australia to New Zealand and that she would be allowed to relocate back to New Zealand with the children so that their forced return to Australia, and the upheaval and trauma associated with that, would turn out to be for little purpose.
[76] I do not accept the fundamental basis for that submission or that, even if that eventual outcome were to eventuate, it would be reason to allow the children to remain in New Zealand.
[77] The father has now applied in Australia for custody. Although the children were in the care of their mother at the time she returned with them from Western Australia to New Zealand, there have been significant periods in the past when the children have been mainly in their father’s care. While there are serious allegations of violence and mistreatment of the children by the father, those allegations are denied.
[78] On the other hand, a Judge will also have to have regard to the fact that the mother has abducted the children from the jurisdiction now on three separate occasions and was for a long time not able or willing to support the children by returning with them to Australia if this had to happen.
[79] The mother’s possible mental and physical health issues may also have to be considered. Counsel for the children referred to these as factors that needed to be considered as explanations for potential difficulties over her evidence. I was also told of these as the explanation for her inability or unwilling to support the children through being with them on their return to Australia if this was required.
[80] The Court will also have to consider whether or not it will be in the children’s best interests to be in the care of their mother if that will result in their being alienated from their father. In that regard, any court will have to investigate the way in which those involved closely with the children in New Zealand over the last two years may have poisoned the children against their father.
[81] It may be that, given all that has happened with these children over a number of years, the Court’s ultimate determination will be that there could be risks for the children with both of these parents. The Court would then have to consider the extent to which each parent recognises those risks the children face and is able and willing to minimise those risks through the support each parent can obtain for the children and safeguards they put in place.
[82] Given the background which is detailed in the affidavits, I do not proceed on the basis these children will inevitably end up in the care of their mother.
[83] I also accept the submission from Ms Mitchell that, even if a Court determines the children should be mainly in the day-to-day care of the mother, it cannot be assumed a Court would then allow her to relocate with the children to New Zealand. That is so given the way Judges consider that children normally benefit from having regular contact with both parents. In this particular case, given recent experience, a Court would also have to consider how relocation of the mother and children to New Zealand could alienate the children from the father and make it very difficult for them to have a real relationship with him.
[84] The issue in this case is whether or not the children should be returned to Australia, not whether they should be returned to Australia to be in the care of their father. On all the evidence which was before the Family Court and having regard to the further evidence which I have admitted, I agree with Judge Turner’s decision that the allegations made against the father are not sufficient to establish that there would be a grave risk of physical or psychological harm to the children or that they would be in an intolerable situation if returned to Australia.
[85] For the children, Ms Doyle submitted that the return should be refused, not because of the risk of violence from the father but because of the way W had said he could take his own life if he had to return and the damage that would then do to the other children. In support of this argument, she relied primarily on information contained in a report from a psychiatrist, Dr Watt, which I have now permitted to be adduced in evidence.
[86] As Judge Turner noted, each of the children has expressed an objection to having to return to Australia. A constable who has been assisting the family, told counsel of his concern to ensure there is a safety plan in place for the children in the event of the Court ordering their return to Australia. He had a concern of the children “taking matters into their own hands” to thwart any order and thereby possibly placing themselves in danger. The Principal of the children’s primary school gave evidence in an affidavit that, when W was asked by counsel for the
children how he would feel if the Court ordered his return and was asked what words he would use to describe his feelings, he said “pain, destruction, horror”.
[87] The Judge asked W what he would do if the Judge made an order for return. There then followed this exchange:
I would do the haka. If I still had to go I would kill myself. I thought about it for ages, since the end of last year. I have told Mum. I said that if I had to go back, that’s what I would do. She said don’t worry about her, just make sure I’m safe.
[88] After this, W was asked:18
Question: “Have you ever tried to self-harm?”
“Yes I have cut myself with a knife on the leg, it healed. I did it in my room. Mum found out about it.
I did it because I was really angry at Dad because Mum told me something about him. I can’t remember what it was but it must have been real bad to make me cut myself. Mum asked me about it when she found out and I said it was because I didn’t want to go back to my Dad.”
[89] Dr Watt, a child and adolescent psychiatrist, began his report by saying he had met with W alone, then with his mother, then with a “key worker” who was concerned for W’s wellbeing “after he attempted to stab himself”. This attempted self-harm was said to be in response to the Court direction that he should return to Australia and his father. (I note the Court order was not that he be returned to his father but to Australia with his safety then to be the responsibility not just of the parents but of the courts and any government agencies with which they might become involved.) The report referred to W’s increased challenging behaviour in October 2015, “usually in the context of discussion regarding return to Australia”. It referred to W talking about wanting to protect his sisters from his father, describing aggressive behaviour between the father and mother and reporting having been tasered as well as physically assaulted. It referred to W saying that, if he had to
return to Australia, he would “run away or hurt himself”.
18 This is also evidence of the extent to which W has become distressed about his father, not because of his own memory of his father, but because of the way his mother spoke about his father.
[90] The report refers to W reporting “a history of extensive family violence” and of him having “made a full disclosure to Child, Youth and Family Service”. The report stated:
[W] no longer has thoughts of self harm. He does become agitated if Australia is discussed. … [He] describes that he is concerned about his mother’s wellbeing. It upsets him to see his mother crying. Stress also leads to [his mother] yelling. [His mother] has her own medical and mental health history associated with being a victim of violence. In referring to his history the report mentions [the mother] and her children were eventually evicted by [the father] about three years ago.
That relates to the allegation that they were kicked out of the home around May
2013.
[91] The report generally paints a positive picture as to how W presented and how earlier symptoms of distress, in relation to issues concerning his father, had reduced. It said he had “fleeting moments” when he considered self-harm behaviour.
[92] Dr Watt refers to W presenting “in a reasonably stable manner now” but this was rather fragile and could change quite quickly if he were returned to his father’s care. It said that W had made significant improvement over the last few months within a stable environment and with psycho-social intervention. Dr Watt wrote that a return to Australia “could trigger PTSD symptomatology”. He said this would be further exacerbated by the loss of his mother with whom W has a close relationship and who feels she is emotionally incapable of returning to Australia. Dr Watt said this would be “a significant loss for the boy”. (Dr Watt was obviously not told of any possibility the mother might return to Australia with the children.) He saw no indication for medication. He anticipated that psycho-social intervention and support would continue.
[93] In developing this submission for the children, Ms Doyle considered it necessary to present the “worst case scenario” of what will happen if all the children were made to return to Australia, their having been removed from what she said was a positive environment for them in New Zealand, to be placed in foster-care in Australia without the support of their mother, only to be eventually returned to New
Zealand. For the reasons I have already stated, I do not accept this is the necessary outcome.
[94] Balanced against that, I take into account the possibility that the mother would recognise that she has to face up to the orders that have been made by the Court, that she would put the interests of her children before her own and would take advantage of the improvements in her own health and wellbeing which, I was told, have been recognised by others within the recent past. I also take into account the possibility that the mother would work with the father to make things easier for the children, in part through travelling to Australia at the same time as the children so that she can be fully involved in the decision-making process regarding who they should live with and whether and how they should have contact with both their parents. There is the possibility that the mother may even recognise that the loss of their relationship with their father may be distressing for the children, just as the French nanny said W was upset at not often seeing his mother in 2013 in the first year after the separation.
[95] At first sight, all this might have seemed a naïve hope, given the way the mother chose to bring the children to New Zealand before the arranged Court hearing date, the way allegations against the father have been pursued in New Zealand, both in the home setting and in Court, and her firm indication that she was not able or willing to go with the children to Australia and they would have to return there on their own. That was her position both at the time of the hearing before Judge Turner on 30 September 2015 and again when he had a hearing to decide how the return orders should be implemented on 5 November 2015. In her submissions for the children, Ms Doyle said the mother’s position was the reality which the Court had to deal with.
[96] Contrary to those submissions and that “reality”, I was told by the mother’s counsel at the end of his submissions in reply that she would be willing to travel to Australia, the only condition being that she has the money to do so. He anticipated that she would be able to seek that financial assistance from her family.
[97] While I note the threats W has made, I do not consider those threats are sufficient for me to refuse the order for return because of the risk that he would carry out those threats. I note they have been made in the context of his wanting to be supportive of his mother’s determination not to return to Australia, her extreme anxiety about her return, and what would appear to be considerable influence brought to bear on the children, and W in particular, to support their mother in that regard. I note the father has arranged for counselling to be available for the children on their return. The mother had told the Family Court Judge in Australia at the conference on 15 January 2015 that the children were already having counselling there. Given the way in which government agencies are likely to be advised of the need for them to be involved as a result of the evidential interview here, I anticipate that the courts as well as other government agencies will be involved in monitoring the children’s safety in Australia. Psycho-social intervention and support should continue, as Dr Watt considered is advisable.
[98] To the extent W has threatened to do himself harm, on the evidence as it stands, this is because his mother wrongfully removed him from the jurisdiction in which both parents had decided to make their home. The feelings W expresses and his expressed anxiety at the prospect of a return thus must, to a significant extent, result from a harmful situation created by the mother.
[99] The observations of Butler-Sloss LJ in the English Court of Appeal are pertinent:19
If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied on by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention … nor should the mother, by her own actions, succeed in preventing the return of the child who should be living in his own country and deny him contact with his other parent.
[100] The evidence from the father also indicates that he is sensitive to the concerns which the children have expressed, has taken steps to ensure that appropriate professional support will be available to them and to ensure the Court in Western
Australia can make decisions between the parents as to what should happen with the
19 C v C [1989] 2 All ER 465 (CA) at 471.
children, and is ready and able to enlist the support of wider family members to ensure all children are safe. There was also evidence from the children’s discussions with Judge Turner where they identify a number of relatives in Western Australia who should also be able to ensure the return of the children there is not going to be as bleak as Ms Doyle suggested.
[101] In further developing her argument for the children, Ms Doyle submitted that with the disclosure W had made in his recent video-taped interview as to his being tasered, the CYFS will have to notify the Australian authorities of cause for concern over the safety of the children. She said the Australian authorities will have to investigate the care and protection issues in the context of the mother’s unwillingness to return with the children to Western Australia, and a clear indication from W that he did not want to be in his father’s care. As part of her worst case scenario, Ms Doyle referred to the possibility of the children being removed from their father’s care and the father being prosecuted for criminal offending and ultimately being deported from Australia. I agree with the submission made by counsel for the father that Ms Doyle was unnecessarily dramatic and emotive.
[102] The disclosure, such as it is, in the interview is, at this stage, just an allegation. There are such issues as to its reliability that it cannot and should not be assumed that authorities committed to the welfare of the children would rely on it as a basis for the extreme step of preventing the father having contact with his children or having them in his care if this was otherwise considered to be appropriate. Such evidence as might be available to the Australian authorities would, in the context of this case, also have to be considered alongside the other information which has emerged from these proceedings. In that respect, the summary of the discussion which took place between the children and Judge Turner will be of considerable importance.
[103] The video interview gave W the opportunity to give his account of what he says happened to him. He has made allegations. Those allegations should be treated
seriously. The authorities should not, however, proceed on the basis they are inevitably true, without further careful investigation.20
[104] The discussion with the Judge took place in a supportive environment. The Judge’s questions were asked sensitively and with empathy and not in an adversarial manner. Through that discussion, the Judge obtained information which, at the very least, provides a basis for questioning the credibility of some or all of W’s evidence.
[105] I do not consider that the prospect of authorities from New Zealand having to tell authorities in Western Australia that they should be concerned as to the welfare of the children carries with it a significant risk that, as a result, the return of the children to Australia will inevitably subject them to trauma and stress such as to create either a grave risk or an intolerable situation for them.
[106] I thus agree with the decision of Judge Turner that the evidence does not establish a defence under either s 106(1)(c)(i) or 106(1)(c)(ii).
The children’s objection to a return - Section 106(1)(d)
[107] Judge Turner recorded, correctly, in his decision how each of the children objected to their being returned to Australia. His decision was criticised by both Mr More and Ms Doyle primarily in relation to W and the Judge’s reasons for finding that W was not of an age and degree of maturity at which it was appropriate to take his views into account. They suggested that more weight should have been given to the evidence of W’s school principal, as to this boy’s maturity being some two years older than his then age of 10 would otherwise suggest.
[108] In particular, Ms Doyle suggested that W’s misbehaviour problems at school were not an indicator of immaturity. She submitted that the current wisdom is that children who have been severely traumatised may well not act out the way they have
been affected by abuse until they are in a position of some security.
20 The now well accepted reports and recommendations from the Cleveland and Orkney Islands inquiries in the United Kingdom show how families and children can suffer when such caution is not exercised: Lord Justice Butler-Sloss Report of the Inquiry into Child Abuse in Cleveland
1987 (HMSO, Cm 412, 6 July 1988); Lord Clyde Report of The Inquiry into the Removal of
Children from Orkney in February 1991 (HMSO, HoC 195, 27 October 1992).
[109] Ms Mitchell, for the father, submitted that the Judge could not be criticised in bringing W’s school record into account in this way because it indicated the extent to which misbehaviour continued even after he had been given clear warnings and sanctions and should have known that, whatever the reasons, his misbehaviour could not continue. She said the repetition and continuation of W’s misbehaviour was consistent with Judge Turner’s assessment of W’s level of immaturity.
[110] There must also be the possibility that this acting out is a result of the insecurity which W could feel as the result of being in a situation where he has no contact with his father, a father with whom he was closely involved when his parents were together and for a significant time when they first separated, a father whom W may well have been proud of given his work history which included time as a soldier in Afghanistan and, more recently, apparently well-regarded service in the security industry.
[111] The school records detailed some 57 incidents between 10 March 2015 and 7
September 2015. Many are of bullying or abusive conduct or speech with other pupils. There are a number of incidents where W disobeyed teachers. There were also a number of incidents where his behaviour was regarded as “showing off”. There was significant repetition of similar misconduct despite the action taken over earlier instances. I consider that the Judge was justified in regarding his behavioural record as one indicator of immaturity.
[112] Judge Turner disagreed with the assessment of the school principal that, although W was 10, his level of maturity was often seen in children of around 12 or
13 years of age. Judge Turner said that his understanding of what had happened in the past in significant respects and his level of thinking was consistent with that of a
10 or 11 year old. I agree with that assessment.
[113] The Judge also had the benefit of the lengthy and careful discussion which he had with W and the other children. He was well placed to make the assessment he did. Judge Turner referred to specific statements which W had made to him during the judicial interview which demonstrated a lack of maturity. These included W saying he did not want to return to Australia because he disliked Aboriginals and the
heat. It was appropriate for the Judge to reach that conclusion based on the statements which he referred to.
[114] The summary of the discussion which took place with the Judge did provide a sound basis for the Judge’s conclusion that W’s “views have been heavily influenced by the adults in his life, and the anti-father sentiment within his mother’s family, from his mother and maternal grandfather in particular”. While the extent of that influence is important in assessing the weight that should be attached to his views, the extent to which W has been influenced is further evidence of his immaturity.
[115] Of particular importance in this case, counsel for the children was unable to provide any evidence that W understood that the issue which the Court had to consider was whether or not the children should be returned to Australia, not to be in their father’s care for the foreseeable future but simply so that a Court in Australia could decide issues between the two parents over whether they should live and who they should be with.
[116] Judge Turner considered carefully the level of maturity of each child individually in the circumstances of this family and in their particular circumstances. The approach he took in considering the issue was appropriate. The evidence he relied on and the conclusions he came to were reasonable and ones I agree with. Accordingly, it had not been established and was not established before me that the children’s views were such that they had to be taken into account.
[117] Even if both Judge Turner and I were wrong about that, the next step would be to consider the weight which should be attached to their views in the context of all the evidence that was before the Court. I agree with Judge Turner that the evidence indicates that W has been heavily influenced by his maternal family in terms of his anti-Australian and anti-father attitude. I also agree with his conclusion that the family in New Zealand had enlisted supports from various agencies and people, all of which has had the effect of reinforcing the negative image W presents of his father and Australia. Given that the evidential basis for those negative views had not been properly tested, it is also significant that this reinforcement has come from people who appear to have assumed that the history provided by the mother or
through the child is correct, without that basic assumption necessarily being true. That is so even of Dr Watt in the report he has prepared.
[118] The basis on which the Judge concluded the two younger daughters, aged 8 and 6, were not at a level of maturity for their views to be given weight, was not challenged by counsel for either the mother or the children. Nor did they challenge his reasons for deciding that little weight could be given to the views they had expressed.
[119] On all the evidence, I consider the conclusion the Judge came to in this regard, in respect of each child individually, was justified. On the evidence, I would have come to the same decision.
[120] Even if both Judge Turner and I were wrong in this regard, the Court would still have had a discretion as to whether this would have meant the children’s objections should be a sufficient defence to the application for return. The Court would have to undertake a balancing exercise, weighing the Convention considerations of comity, deterrence and restoration of status quo against factors such as the nature of the child’s objection, the weight to be accorded to the objection and the best interests of the particular child. The Court of Appeal has stated that the policy of the Convention should always be a very weighty factor in the exercise of
the Court’s discretion.21 It has referred to the way general welfare considerations for
the children do not apply in Convention decisions and, to the extent that general welfare may be considered, it is only in relation to the short-term position that will apply while a Court in the relevant jurisdiction decides where the children should live.22
[121] Had the evidence been sufficient to require the Court to exercise its discretion as to whether the children should be returned in the face of their objection, I would
have decided the return of the children was appropriate.
21 White v Northumberland, above n 14, at [25].
22 At [55].
[122] The evidence before the Court at this stage indicates that there are significant credibility and evidential issues which need to be resolved so that a fully informed Court can make the best judgment possible as to what longer term arrangements should be put in place for the benefit of the children.
[123] Given the allegations that have been made against the father, findings could be made against him that would have a significant impact on the way in which he will be able to have contact or day-to-day care of the children in the future. Likewise, the fact these allegations have been made by the mother and have potentially alienated the children from their father, in the context of her removing the children from Australia to New Zealand as she did, also means there is a real issue as to whether there will be significant risks for the children if they remain in her full time care. These issues need to be considered carefully.
[124] Although a Judge will be looking forward and trying to assess what each parent might offer these children, that will have to be done also looking back and assessing what happened in the past. The witnesses as to that will primarily be in Australia. It is the Family Court in Western Australia that should be dealing with those issues. This is the Court in which the mother herself initiated domestic violence restraining proceedings in October 2014. This was the Court which she agreed would deal with the proceedings which she had initiated. In those circumstances, Convention considerations would have led me to require the return of the children, even if I had come to a different view as to their maturity and the weight that ought to be given to their objections.
Conclusions
[125] For all these reasons, I am satisfied the orders for return made in the Family Court were appropriate. I come to the same conclusions on all the evidence which is before me.
[126] On 5 November 2015, after giving the parties the opportunity of reaching agreement on the voluntary return of the children to Australia, the Judge heard submissions and made orders finalising the terms for the children’s return. At that time, the mother had already lodged an appeal with the High Court. Judge Turner
noted “the mother is not willing to return to Australia under any circumstances”.23 In that context, he gave detailed orders, including a variation of his original order, so that the children would have to be returned to Australia within 21 days of the appeal being determined.
[127] As already mentioned, at the very end of the appeal hearing, counsel for the mother indicated she may well now be able and willing to travel to Western Australia with the children. Counsel for the children and counsel for the father both acknowledged that the final orders made by Judge Turner on 5 November 2015 remained appropriate and would need to be in place to ensure the return did happen if the outcome of the appeal required this. With the mother’s change in attitude, there is the possibility that the parents may now be able to work together to show that they are each capable of helping their children deal with the orders that have been made and the return to Australia. If that happens and, as a result, there can be a change to the arrangements as ordered by the Family Court, it should be possible to implement that by agreement, if necessary with a consent memorandum submitted to the Family Court. It is appropriate, however, that the judgment in the Family Court and the orders made on 5 November 2015 remain in place so that all parties are aware of how the return must be implemented, if they do not agree on any alternative arrangements.
[128] Accordingly, the appeal is dismissed. The orders made by Judge Turner, requiring the return of the children to Australia and the way this is to be implemented, remain in place.
[129] If an application is to be made for costs and there is no agreement, appropriate memoranda must be filed with this Court. Each is to be no longer than three pages.
Solicitors:
Medlicotts Solicitors, Dunedin
Cuningham Taylor, Christchurch
Copy to: C Doyle, Hope & Associates, Oamaru.
23 Implementation Decision, above n 3,at [10].
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