Robinson v Robinson

[2020] NZHC 1765

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-511

[2020] NZHC 1765

BETWEEN

ROBINSON

Appellant

AND

ROBINSON

Respondent

Hearing:

23-24 June 2020

Appearances:

V A Crawshaw QC and S Wilson for the Appellant

A Ashmore, N Fairley and J Gandy for the Respondent S Houghton, lawyer for the children

Judgment:

22 July 2020

JUDGMENT OF GORDON J

This judgment was delivered by me on 22 July 2020 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           John & Co, Fairfield, Australia

Thomas & Co, Auckland Counsel:     V A Crawshaw QC, Auckland

A Ashmore, Auckland S Houghton, Auckland

ROBINSON v ROBINSON [2020] NZHC 1765 [22 July 2020]

TABLE OF CONTENTS

Introduction  [1]

Background  [8]

Undertakings by the father  [25]

The Convention, the statutory framework and UNCROC  [27]

Family Court judgment  [40]

Child objection defence  [42]
Consent/acquiescence  [49]

Grave risk defence  [52]

Overall discretion  [54]

Approach on appeal  [56]

No specialist psychologist’s report under s 133  [57]

Fresh evidence  [63]

First ground of appeal – child objection defence - s 106(1)(d)  [71]

Legal principles  [82]

Lawyer for the children – 30 September 2019 report regarding M  [88] General practitioner letter – 25 October 2019 regarding M  [95] Doctor Farnsworth-Grodd – affidavit 30 October 2019 regarding M  [97] Lawyer for the children –2 December 2019 report regarding M  [103] Lawyer for the children - 9 June 2020 report regarding M  [110] Lawyer for the children - 30 September 2019 report regarding N  [116] General practitioner letter – 25 October 2019 regarding N  [123] Dr Farnsworth-Grodd – affidavit 30 October 2019 regarding N  [124] Lawyer for the children– 2 December 2019 report regarding N  [128] Lawyer for the children – 9 June 2020 report regarding N  [130] Lawyer for the children – 30 September 2019 report regarding S  [134] Lawyer for the children – 2 December 2019 report regarding S  [135] Lawyer for the children – 9 June 2020 report regarding S  [136]

Further background – H and A  [138]

Discussion  [148]

Second ground of appeal – consent/acquiescence defence – s 106(1)(b)(ii)     [198]

Legal principles  [202]

Discussion  [208]

Cross appeal – grave risk defence – s 106(1)(c)  [233]

Legal principles  [242]

Discussion  [247]

Third ground of appeal – failure to properly exercise discretion under

s 106(1)  [280]

Legal principles  [286]

Discussion  [292]

Summary of conclusions  [300]

Result  [301]

Costs  [302]

Introduction

[1]                  This is an appeal from a decision of Judge Burns in the Family Court at Auckland declining an application for an order under s 105 of the Care of Children Act 2004 (the Act)1 to return three children (M, N and S) from New Zealand to Australia.2

[2]                  It was not disputed in the Family Court (nor was it in this Court) that the children had been wrongfully removed from Australia by the mother;3 that Australia was their habitual residence; that the removal was in breach of the father’s right to custody; and that those rights were being exercised at the time of the removal.4 In other words the grounds under s 105(1) for an order to return the three children had been made out.

[3]                  The issue in the Family Court was whether the mother, Mrs Robinson,5 could make out one or more of the grounds for resisting an order for return, as provided for in s 106(1) of the Act. Judge Burns determined that:

(a)in relation to the two older children, M and N, the child objection defence was made out;6

(b)in relation to all three children, the consent/acquiescence defence was made out;7

(c)in relation to the youngest child, S, the grave risk of harm/intolerable situation defence was not made out (the Judge expressly did not

1      The application was brought under pt 4 of the Care of Children Act 2004 provisions of which incorporate into New Zealand law the Convention on the Civil Aspects of International Child Abduction, as signed at The Hague on 25 October 1980.

2      [Robinson v Robinson] [2020] NZFC 1094.

3      The children came to New Zealand with their mother on holiday with the agreement of the father. The mother and children did not return to Australia. Mr Ashmore, for the mother, characterises the position as a retention rather than an abduction. But he accepts the Hague Convention and the Care of Children Act 2004 apply.

4      Section 105(1)(a)-(d).

5      The parties’ surname is fictionalised. They selected the surname Robinson for use in this judgment.

6      Care of Children Act 2004, s 106(1)(d).

7      Care of Children Act 2004, s 106(1)(b).

consider this defence in relation to the two older children, M and N, having upheld the two defences referred to above for them);8

[4]                  Having made those findings, the Judge exercised his discretion to decline the application to return in relation to all three children.

[5]                  On appeal, it is the case for the father that neither of the defences the Judge accepted was properly available on the evidence before the Court and the Judge erred in his approach to the exercise of his discretion. The Judge should have ordered the return of the children to Australia.

[6]                  The mother opposes the appeal and has also filed a cross-appeal against the Judge’s finding that the grave risk defence was not made out in relation to S. The mother also says that defence is established for M and N.

[7]                  Ms Houghton, lawyer for the children, supports the mother’s position in relation to the child objection defence and on her cross-appeal.

Background

[8]                  The appellant, Dr Robinson, who is the father of all three children, was born in Iraq and has lived in Australia since 1992. He is a registered general medical practitioner and an Australian and Iraqi citizen.

[9]                  The respondent, Mrs Robinson, who is the mother of all three children, was born in Iran to a New Zealand mother and Iranian father. Her family lived in both the Middle East and New Zealand before moving to New Zealand permanently in 1984.

[10]              The mother and father met in New Zealand in 1996 while the father was visiting his brother here. They married in Auckland on 21 July 1997. More or less immediately following their marriage they moved to Sydney, Australia. They remained living together in Sydney until 7 July 2019. As at that date they had been married for 22 years. They had not separated. The mother is a registered nurse and

8      Care of Children Act 2004, s 106(1)(c).

worked for the father in his medical practice. The mother is an Australian, New Zealand and Iranian citizen.

[11]              There are six children of the marriage. They were all born in Australia. The three older children, who are not the subject of this proceeding, are:

(a)I, born 28 October 1998 (son, 21 years old);

(b)H, born 12 July 2000 (son, 20 years old); and

(c)A, born 28 October 2001 (daughter, 18 years old).

[12]              The oldest son, I, remains in Australia. He is studying at Sydney University and works part time. He continues to live with his father. H and A have lived in New Zealand since late 2018. They commenced tertiary study in 2019 in Auckland. They are both living with their maternal grandparents and members of the mother’s wider family in Auckland.

[13]The three younger children, who are the subject of this proceeding, are:

(a)M, born 24 August 2005 (daughter, aged 14 years almost 15);

(b)N, born 6 November 2006 (son, aged 13 and a half years); and

(c)S, born 9 August 2015 (son, aged 4 years, almost 5).

[14]              Between 15 and 24 April 2019, the mother and the three younger children came to New Zealand for a holiday at the end of the first school term. They returned to Australia at the end of the holiday. On 7 July 2019, the mother and the three younger children again travelled to New Zealand for a pre-arranged holiday. Return tickets to Australia were booked for 21 July 2019.

[15]              On 19 July 2019, the mother’s Australian solicitor sent a letter by email advising the father that the mother considered the marriage to be at an end and that neither she nor the three younger children would be returning to Australia. The father

says he read the letter on 20 July 2019, when he searched his emails, after hearing from the oldest son, I, who had received a message from his mother that day. The message said she did not intend to return to Australia with the three younger children as previously arranged.

[16]              There were a number of telephone conversations between the mother and father from this date, which are relevant to the issue of whether or not the father acquiesced in the three younger children remaining in New Zealand. On 26 July 2019, I, and the father’s brother, O, travelled to New Zealand. Their evidence is that this was an in an endeavour to encourage the mother to return to Australia with the three children.

[17]              There were further telephone conversations between the mother and father. Then the father came to New Zealand on 30 July 2019 with I. The father’s evidence is that he had hoped to meet with the mother with the intention of persuading her to return to Australia with the three younger children. He was not able to meet her or the children as a result of being served with a Trespass Order. The father and I returned to Australia on 1 August 2019.

[18]              On 2 August 2019, the mother filed proceedings in the Family Court of Australia seeking a variety of protective and injunctive orders on an interim and final basis, both in relation to the person and in relation to property, including orders that the children live with the mother in New Zealand on an interim and permanent basis.

[19]              The application seeking the return of the three children to Australia was lodged with the Australian Central Authority on 12 August 2019 and the application to the Family Court in New Zealand was filed on 19 August 2019.

[20]              The mother and M, N and S are living in New Zealand with the mother’s parents and members of the mother’s extended family along with the two older children, H and A.

[21]              The case for the mother is that the family’s life in Australia was marred by physical violence, emotional harm and extremely controlling behaviour by the father.

For example, no one was allowed to have their own general practitioner unless the father requested it. He was in charge of all the finances and spending. Any questions about that resulted in physical and verbal abuse. She says this was a dynamic that operated for over 20 years and which has had a significant psychological impact on her and the children. The mother says in early 2019, M began to show increasingly volatile and irrational mood swings. Then in March 2019, M began cutting herself. It was the deterioration in M’s mental health and the complexity of her needs that was a major driver in the mother’s decision to leave Australia. She was concerned that M was following the same patterns as A (which I will refer to later in this judgment). The mother says she could not return to Australia for the health and wellbeing of her children.

[22]              The father emphatically denies the allegations of physical and mental abuse by him. He says he has never used physical force to discipline the children. At most, he says, he used reasonable force as punishment when the children were young, but only to correct and discipline them. He says he was more patient with the children than the mother. He says she would regularly get upset and aggressive towards the children. He says he has witnessed her over the years using physical punishment towards them and she would also often use denigrating and derogatory words towards the children. She has also been physically violent towards him. He denies he controlled the lives of the mother and children. He says he was the medical practitioner for them but that they have consulted other doctors whose names he mentions.

[23]              The father says that the relationship he had with his children, particularly the three youngest children who are the subject of this proceeding, was nothing but a loving, caring, strong and respectful relationship up until the time they left Australia for New Zealand on 7 July 2019. The children have always been and will always be his first priority and he has always been very active and involved in their lives. He tried to create an environment of love and respect in their home and provided generously for them.

[24]              There is no independent evidence supporting the allegations of violence on the part of either parent. Both M and N say that their father was physically violent towards them and psychologically abusive. However, the oldest son, I, says that he does not

recall the father being physically or mentally abusive towards him or any of his siblings.

Undertakings by the father

[25]              It is necessary to mention undertakings given by the father. In his affidavit of 22 November 2019, the father provided undertakings in the following terms:

18.I also provide the following undertaking in an endeavour to make it abundantly clear that the Respondent and the children will not be exposed to any unacceptable risk of harm, physically or mentally if they return to Australia, in that;

(a)I will vacate the matrimonial home and agree for the Respondent and the children to have sole occupancy of the matrimonial home pending any Court determination in Australia on the issue of relocation;

(b)I will not interfere with the Respondent or contact her, unless through a lawyer;

(c)I will not interfere with the children or contact them unless through a Court order;

(d)I will be fully responsible for all the children’s school fees and tuitions.

(e)I will pay the Respondent the sum of $500.00 per week, by way of living expenses, into a nominated account, pending further Court determination in Australia on the financial affairs.

(f)I am prepared to give a similar undertaking in the current Court proceedings in Australia.

[26]               The undertakings are relevant to both the child objection and grave risk of intolerable situation defences.

The Convention, the statutory framework and UNCROC

[27]              The Hague Convention (Convention) as it is known, was adopted by the Hague Conference on Private International Law on 25 October 1980. New Zealand became a party to the Convention with effect from 1 August 1991.

[28]              The underlying premise of the Convention is that disputes over care and control of children should be determined in the courts of the jurisdiction that comprise the

child’s habitual residence. Removal of children from their country of habitual residence without lawful permission or consent of all guardians is treated as abduction. The Convention seeks to ensure the prompt return of an abducted child to the child’s State of habitual residence unless one of the prescribed exceptions applies and return is not appropriate.

[29]              This Court is therefore concerned with the forum for disputes over care and control of children rather than making a substantive determination on those issues. As was observed by McGrath J in Secretary for Justice v HJ:9

Overall it must always be borne in mind that, in cases in which an application for return is made in accordance with the Convention, the judicial task is to decide the appropriate forum for determination of the child’s interests, rather than to undertake a thorough investigation of those interests.

[30]              The operative provisions of the Convention for present purposes are articles 12 and 13. It is not necessary to set out those articles in this judgment. They are implemented in New Zealand by ss 105 and 106 of the Act. Section 105 provides:

105Application to court for return of child abducted to New Zealand

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

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

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

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

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

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

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

9      Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289 at [131].

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

(3)A court hearing an application made under subsection (1) in relation to the removal of a child from a Contracting State to New Zealand may request the applicant to obtain an order from a court of that State, or a decision of a competent authority of that State, declaring that the removal was wrongful within the meaning of Article 3 of the Convention as it applies in that State, and may adjourn the proceedings for that purpose.

(4)A court may dismiss an application made to it under subsection (1) in respect of a child or adjourn the proceedings if the court—

(a)is not satisfied that the child is in New Zealand; or

(b)is satisfied that the child has been taken out of New Zealand to another country.

[31]              As already noted there is no issue that the grounds in s 105(1) are made out. The focus in the Family Court and on appeal has been whether any of the grounds for refusal of a return order set out in s 106 is made out. That section relevantly provides:

106Grounds 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—

…

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

…

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

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

…

(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

…

[32]              The Convention is treated as having a deterrent purpose or function. In commenting on the s 106 exceptions to what is otherwise the requirement to order return of the child under s 105, Tipping J for the majority in the Supreme Court observed:10

[40]  … 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.

(citation omitted)

[33]              In the recent judgment of LRR v COL,11 the Court of Appeal discussed the Convention, the New Zealand implementing legislation and the general principles underlying the Convention before applying those principles to the defence in that case (s 106(1)(c)(ii) – grave risk of intolerable situation) and to the exercise of the discretion. On the general principles of the Convention the Court of Appeal said:

[78]      However the Convention identifies certain circumstances in which the return of a child to its State of habitual residence may not be appropriate, because return would be contrary to the interests of that child. The presumption that the best interests of the child will be served by a prompt return to the country where they are habitually resident is displaced in these circumstances.

[79]      It cannot be emphasised too strongly that the exceptions set out in Article 13 [implemented in s 106] are as integral to the scheme of the Convention as the Article 12 provision [implemented in s 105] for prompt orders for return. The circumstances in which the Convention does not require an order for return of the child are carefully circumscribed. It is not the function of the requested State to conduct a wide-ranging inquiry into the best interests of the child. But the prompt and focused inquiry required by the provisions of the Convention is designed to ensure that the outcome does serve the interests of the particular child. As Baroness Hale said in Re D:

… No one intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm.

(citation omitted)

10     Secretary for Justice v HJ, above n 9.

11     LRR v COL [2020] NZCA 209.

[34]              The Court of Appeal also referred to the relationship between the Convention and international human rights instruments, including the United Nations Convention on the Rights of the Child (UNCROC). The latter was considered by the United Kingdom Supreme Court in Re E. Delivering the judgment of the Court, Baroness Hale and Lord Wilson said:12

14.        … the fact that the best interests of the child are not expressly made a primary consideration in Hague Convention proceedings, does not mean that they are not at the forefront of the whole exercise. … the aim of the Convention is as much to deter people from wrongfully abducting children as it is to serve the best interests of the children who have been abducted. But it also aims to serve the best interests of the individual child. It does so by making certain rebuttable assumptions about what will best achieve this.

15.        Nowhere does the Convention state that its objective is to serve the best interests of the adult person, institution or other body whose custody rights have been infringed by the abduction. … The assumption then is that if there is a dispute about any aspect of the future upbringing of the child the interests of the child should be of paramount importance in resolving that dispute. Unilateral action should not be permitted to pre-empt or delay that resolution. Hence the next assumption is that the best interests of the child will be served by a prompt return to the country where she is habitually resident. Restoring a child to her familiar surroundings is seen as likely to be a good thing in its own right. As our own 1989 Act [Children Act 1989] makes clear, in section 1(3)(c), the likely effect upon a child of any change in her circumstances is always a relevant factor in deciding what will be best. But it is also seen as likely to promote the best resolution for her of any dispute about her future, for the courts and the public authorities in her own country will have access to the best evidence and information about what that will be.

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

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

[35]              The Court of Appeal noted that the United Kingdom Supreme Court went on to say that the exceptions to the obligation to return are, by their very nature, restricted in scope and do not need any extra interpretation or gloss.13 The Court of Appeal also noted that the High Court of Australia had rejected the proposition that the exceptions should be “narrowly construed”.14

[36]              The Court of Appeal stated that the above observations are equally relevant to the Act. This is emphasised by s 4 of the Act, which provides that the welfare and bests interests of the child, in his or her particular circumstances, must be the first and paramount consideration in proceedings under the Act and in any other proceedings involving guardianship or day to day care for, or contact with, a child.

[37]The Court of Appeal continued:

[83]      … The inquiry into the best interests of the child must be approached in the manner contemplated by ss 105 to 107. But it remains the case that the welfare and best interests of the child are, as the United Kingdom Supreme Court put it in Re E, at the forefront of the whole exercise. The outcome does not turn on the interests of the parents or guardians of the child, or for that matter of the relevant Central Authorities or States.

[84]      For essentially the same reasons there is no inconsistency between the Convention and the Act, properly understood and applied, and the UNCRC requirement that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

(citation omitted)

[38]              Where one or more of the exceptions in s 106 is made out, the Court must still undertake an overall assessment to determine whether, in the circumstances of the case, it is appropriate to refuse to make an order for return of the child. In an appeal to the House of Lords involving two girls aged 10 and 13, Baroness Hale referred to a line of authorities in which the discretion had been approached on the basis that

13     LRR v COL, above n 11, at [81] referring to [52] of Re E.

14     At [81] citing DP v Commonwealth Central Authority [2001] HCA 39, [2006] CLR 401.

refusing an order for return should only occur in “exceptional cases”. Baroness Hale, in rejecting any such requirement stated:15

… I have no doubt at all that it is wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which return may be refused are themselves exceptions to the general rule. That in itself is sufficient exceptionality. It is neither necessary nor desirable to import an additional gloss into the convention.

[39]              Finally, the burden of proof to establish the existence of a defence under s 106 is on the abducting parent, to the civil standard of the balance of probabilities.

Family Court judgment

[40]              The Judge first addressed the admissibility of evidence. There was no specialist psychologist’s report under s 133 of the Act. I will address this issue shortly. In a pre-trial conference, a Family Court Judge ruled that psychological material could be placed before the Court by the mother, who then filed an affidavit of psychologist Dr Virginia Farnsworth-Grodd. That affidavit referred to the involvement of a general practitioner for the five children in New Zealand and the Kari Centre.

[41]              The father objected to the admission of correspondence from the general practitioner; correspondence from the Kari Centre; and a selection of case notes from a variety of sources in Australia and New Zealand all annexed to an affidavit of the mother. The Judge admitted the evidence, noting the reporting letters from the Kari Centre regarding the older sister A formed part of the background of the consultations that had taken place in Auckland since the children arrived. The Judge said that while A was outside of the jurisdiction of the Court, issues relating to her formed part of the background and context in which the circumstances had arisen. The Judge therefore said he had no difficulty in finding that the information provided by the general practitioner, the Kari Centre and the psychologist was relevant and probative, particularly having regard to the complete contradiction between the mother and father as to what had happened in their household over the preceding 20 years.

15     Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 at [40].

Child objection defence

[42]              The Judge first quoted extensively (just over nine pages of the judgment) from the two reports of Ms Houghton, lawyer for the three children. The first report is dated 30 September 2019 and the second is dated 2 December 2019 (four days before the hearing).

[43]              The Judge described both M and N as mature and thoughtful for their age. The Judge said, based on what they had told lawyer for the children, M and N had given careful consideration to the situation they had found themselves in and had been able to give logical and rational reasons for their objections. The Judge found confirmation of the level of intelligence and maturity of both M and N in their school reports. He found that N was not quite as mature as his sister, but the Judge concluded both had intelligence and maturity higher than average for children of their ages.

[44]              The Judge then referred to the well settled four-stage approach to this defence.16

[45]              On the first question, does the child object to return, the Judge stated that the answer was “clearly yes” for both M and N. The Judge noted that the youngest, S, was not sufficiently old enough for Ms Houghton to ascertain his views.

[46]              On the second question, the Judge considered that both M and N had attained an age and degree of maturity at which it is appropriate to give weight to their views for the following reasons:

(a)they were able to give consideration to the effect of a loss of relationship with their older siblings should they return to Sydney;

(b)they were able to take into account that they were both settled in their respective schools;

(c)they were able to take into account that they receive support from a wide extended family and were in a busy family home which appeared to be a positive environment for them;

(d)they were able to consider and express their view about the comparative life back in Australia should that occur;

16     White v Northumberland (2006) 26 FRNZ 189 (CA).

(e)I think both were prepared to consider and modify their views after being advised of the undertaking given by the applicant to allow them to return to the former family home on their return to Sydney and the provision of ongoing financial support. This indicated to me that the views held were not intransigent;

(f)although there is reference to the psychological issues and conduct of their father in the home I do not consider I need to make a finding about that in terms of the validity of the objection. … The evidence from Dr Farnsworth-Grodd indicates that [M] has a well-formed and thought-out basis for objection to father’s conduct in their home in Sydney. This is a view held consistently by all of the children with the exception of the oldest but it is clear that there are a number of reasons for the objection in addition to the concerns about psychological safety.

[47]              Despite having referred to the four stage approach, the Judge did not consider the third step, namely the weight that should be given to the views of M and N.

[48]              The Judge then moved to the fourth step, the exercise of the discretion, before considering the other defences raised. The Judge said he could not see any compelling reason not to exercise the discretion to uphold the objection by both M and N. The Judge said this was particularly in the context where both children had lived in New Zealand for a period and had a clear basis for comparing their two situations. The Judge considered a major factor in the views expressed, and the objection to return, was the loss of the relationship with their two older siblings, whom the Judge found they were clearly very close to. The Judge said when he stood back and looked at the matter overall, taking the mother’s evidence into account as corroborating the children’s views as conveyed to lawyer for the children, their objections should be upheld.

Consent/acquiescence

[49]              The Judge set out in full the written submissions of counsel for the father on consent. However the Judge omitted counsel’s submissions on acquiescence. The Judge found that the father did give his consent to all three children remaining in New Zealand in the course of a telephone conversation with the mother on 21 July 2019. The Judge accepted the mother’s evidence and found the mother and father had an amicable discussion during which the merits of the three children remaining in New Zealand were expressed and discussed fully. In accepting the mother’s evidence, the

Judge said it was supported by the fact she immediately instructed her lawyer and a letter was sent to the father by her lawyer confirming the position. The Judge referred to the sense of excitement around the household and relief following the phone call as a result of permission having been given to stay in New Zealand. The Judge also referred to the mother’s action of enrolling M and N at a secondary school shortly after the phone call.

[50]              The Judge found that the father had clearly changed his mind when, in a long telephone conversation on 27 July 2019, he said he wanted the mother and the children to come back to Australia with his brother.

[51]              The Judge considered the father understandably wanted, in the first instance, to placate and please the mother and made a decision to accept the situation and give his consent. However, within a relatively short time, upon written confirmation of that consent being sought and after discussions with others, he changed his mind and was party to sending his brother and son I to New Zealand. He subsequently came to New Zealand himself. The Judge referred to the legal principle in relation to consent, saying that once consent is given it could not be withdrawn after removal has taken place. He said removal had clearly taken place. (The Judge did not refer to acquiescence). The Judge concluded that consent was given in relation to all three children. He said he accepted the evidence given by the mother on this point, corroborated by the mother’s two sisters and maternal grandmother.

Grave risk defence

[52]              The Judge noted there are two parts to the statutory defence: first, whether the return would expose the children to physical or psychological hardship (the word used in the Act is in fact “harm”) or, second, would place the children in an intolerable situation. The Judge said that since he had upheld the objections by M and N, and also having found that the father consented to their remaining in New Zealand, he did not have to consider this defence for them. He said, however, he had decided to consider the defence in relation to the youngest child, S. The Judge noted there is a very high threshold to establish this defence. He said the primary basis would be that S, at the age of four, would be ordered to return to Australia, with his other four siblings

remaining in New Zealand with their mother. The converse, the Judge said, would be that the mother would accompany S and leave the other siblings in New Zealand to be cared for by members of her family. He said this would place the mother in a very difficult dilemma but he could not be satisfied that it would expose S to a grave risk.

[53]              The Judge said it was clear the Australian Family Court system could effectively make decisions in S’s best interest and welfare. The Judge took into account there was financial and material provision available to house S and look after him. He would have his father and oldest brother available to assist. The Judge said there was very little evidence S would be exposed to any physical, emotional or psychological violence. He said the psychological matters referred to by the mother in her affidavit had impacted on the older children, particularly the two female children (A and M), but there was no evidence that S had been exposed to any psychological issues “which would justify placing him in grave risk”. The Judge said this was particularly so having regard to the undertaking given by the father that he would vacate the family home and provide financial support for the mother to enable her to return with the child. The Judge said he could not find that S would be exposed to “an intolerable situation or a grave risk”.

Overall discretion

[54]              Having already applied his discretion in relation to the child objection defence on its own, the Judge finally exercised his discretion in relation to that defence again and the consent/acquiescence defence. He refused to order the return of the children.

[55]              He said he took into account the following factors. The three children, together with their two older siblings, appeared to be comfortable and were progressing well in New Zealand. He said the situation was stable. The Judge was satisfied that appropriate contact arrangements could be worked out and, failing that, they could be the subject of a hearing in a relatively short time in the Auckland Family Court. The Judge also considered the father had the financial resources to be able to exercise contact on a regular basis in Auckland. He expressed himself satisfied that the three children were receiving appropriate educational care and were being well housed and looked after. He said they had access to considerable family support and he took into

account the reasons behind their objections and the reasons for the discretion vested in the Court. The Judge did not see any reason to depart from the decision made. He declined to make an order for their return.

Approach on appeal

[56]              The appeal is brought under s 143 of the Act. It is a general appeal.17 Although s 106(1) of the Act is commonly described as involving an exercise of discretion, the Supreme Court confirmed in Simpson v Hamilton,18 that Austin, Nichols & Co Inc v Stichting Lodestar19 applies to the entire matter. The approach in May v May20 does not apply to any part of an appeal against a decision under s 106.21 This Court is therefore required to consider matters afresh and arrive at its own assessment of the merits of the case. No particular deference is required to the lower court for its factual findings. That is particularly so in Hague Convention proceedings, which are normally (as in this case) dealt with on affidavit evidence without cross-examination.

No specialist psychologist’s report under s 133

[57]              In the Family Court, in a memorandum for a pre-trial conference, Mr Ashmore, for the mother, submitted that a specialist psychologist’s report should be ordered under s 133 of the Act. This application was based on the mother’s case that the separation of the siblings would place the younger children in an intolerable situation, particularly given the complexity of the family dynamics and the presence of mental health issues for all children.

[58]              In the face of opposition by the father, no report  was  ordered.  Nor  did Judge Burns interview M and N. In this Court, Ms Crawshaw QC (who was not counsel in the Family Court), for the father, raised the lack of a s 133 report in the

17     Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]-[32].

18     Simpson v Hamilton [2020] NZSC 42 at fn 34.

19     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

20     May v May (1982) 1 NZFLR 165 (CA).

21 In Simpson v Hamilton, above n 18, the Supreme Court noted at fn 34 that the High Court had applied May v May as governing the principles that apply on appeal. The footnote further states it was (correctly) agreed by the parties in the Court of Appeal that Austin, Nichols applied rather than May v May. The Supreme Court referred to the Court of Appeal judgment at [44], where the Court of Appeal noted that the High Court should not have treated any aspect of the appeal as being governed by the approach directed by the CA in May v May.

context of her submissions on the child objection defence and the weight to be given to the views of M and N. These submissions were particularly concerned with possible influence by members of the maternal family on the objections to return expressed by M and N. Ms Crawshaw submits that this Court has three options: one is to consider weight itself; another is that the Court could refer the matter back to the Family Court; or, finally, the Court could call for a s 133 report itself to address the issue of potential influence on the views expressed by M and N.

[59]              Ms Crawshaw’s position on those three options is that there is sufficient evidence to enable the Court to conclude it should not give unquestioned weight to the views of M and N and that a s 133 report is not necessary to reach such a view. She submits this Court is in a position to decide not to give undue weight to the objections by M and N and to exercise the discretion to allow their return to Australia.

[60]              In LRR v COL the Court of Appeal referred to the Convention requiring the Court in a requested State to walk a delicate line between ensuring that the application is determined promptly, and ensuring that proper attention is paid to the important and often strongly contested issues that can arise in the context of Convention applications. The Court of Appeal said the temptation to conduct a full inquiry into the welfare and interests of the child must be resisted. On the other hand the Court said that the Convention and the Act require the Court to conduct a proper inquiry, based on evidence rather than speculation, into facts relevant to any exception that is invoked.22 The Court continued by saying:

[104] … Appropriate case management is essential to ensure that the issues are identified, and evidence relevant to those issues is provided to the court, in the shortest feasible timeframe. At an early stage the court should consider what evidence the parties propose to provide, and whether additional evidence is needed to enable the court to make an informed decision under s 106. Depending on the issues raised, it may be desirable to appoint an independent psychologist to prepare a report. In some cases it will be desirable to appoint counsel for the child, who can ascertain the views of the child and represent the child’s interests in the proceedings. …

(citations omitted)

22     LRR v COL, above n 11 at [101].

[61]              In my view there should not be further delay by sending the matter back to the Family Court for that Court to obtain a s 133 report nor for this Court to call for a report itself. It is now over 11 months since the application seeking the return of the children was lodged with the Australian Central Authority.

[62]              I have no doubt that a s 133 report would have been of assistance. But in its absence, the Court has three reports from lawyer for the children, an affidavit from a psychologist (albeit not a Court appointed psychologist) and a letter from the children’s general practitioner.23 I consider such evidential basis, together with all the other evidence, is sufficient to allow the Court to reach a conclusion both on the grave risk defence and on the weight to be attached to the objections of M and N. This includes whether the weight should be adjusted due to the possibility of influence by the mother and/or other members of the family in New Zealand.

Fresh evidence

[63]              The father applied in advance of the hearing for leave to adduce fresh evidence on appeal. The application was not opposed by the mother, provided she had a right of reply. In consequence of that agreement, the application was not addressed prior to the hearing of the appeal.

[64]              For the father there are two affidavits, one from him affirmed on 12 June 2020, and one from his Australia solicitor, John Putrus, affirmed on 15 June 2020. The father’s affidavit mainly addresses updating matters and also annexes application documents from the Family Court proceedings in Australia. Evidence in those proceedings had been filed in the Family Court in New Zealand but not the applications.

[65]              There are also copies of interim Court orders dated 14 April 2020 made by consent in the Family Court of Australia: directing fortnightly payments by the father to the mother; regarding sale of properties and the disbursement of the proceeds of sale of one of those properties. Also annexed is a copy of the undertakings given by

23 See comments by the Court of Appeal in LRR v COL, above n 11, at [106] as to the need for necessary evidence to enable an informed decision even if that entails some further delay. But the outcome – delay – is problematic.

the father in the Family Court in Australia. They are to the same effect as the undertakings referred to in [25] above, save that the reference to school fees is “reasonable” school fees.

[66]              The father confirms that in accordance with his undertakings he recently moved out of the former family home. He also refers to efforts to contact his children. He says that since the Family Court hearing on 6 December 2019, he has been telephoning to speak with the children every Friday. He says he has not been able to get through to speak with the children since 10 April 2020. He says he has not been able to speak to S at all since he was taken to New Zealand, although he has called to speak to him.

[67]              In his affidavit, Mr Putrus says it is usual practice in the Family Court of Australia to file undertakings with the Court. Undertakings are enforceable, and if breached the sanction for such breaches is contempt of Court which is punishable by a fine or imprisonment. Mr Putrus says in Australia the undertaking has the same effect as an order of the Court.

[68]              The mother filed two affidavits in reply. One is from Wazhma Sultanzada, the instructing solicitor representing the mother in the Family Court of Australia, affirmed on 19 June 2020. Ms Sultanzada refers to Mr Putrus’ affidavit. She says the undertaking filed in the Family Court has not been served. She said this is highly unusual. However, she does not state that there is any consequence where service is not contemporaneous with filing.

[69]              The other affidavit is from the mother affirmed on 22 June 2020. She takes issue with the father’s statement that he has not talked to the children since 10 April 2020. She sets out details of calls she claims were made, annexing screenshots of her phone, and comments on the call log that is annexed to the father’s affidavit. As far as S is concerned, the mother says she accepts that S and the father do not communicate for long as S simply does not want to speak to him. On occasions when the father is speaking to the other children with the phone on speakerphone, S is present.

[70]              The telephone call evidence continues the dispute between the parties on virtually all issues. It is fresh evidence. But it is peripheral to the issues I need to decide and I do not admit it. However other parts of the affidavits are of assistance to the Court. Apart from the applications in the Family Court in Australia, which it seems were inadvertently omitted from the evidence filed in the Family Court here, it is fresh evidence. Save for the telephone call evidence, I admit the evidence in the new affidavits in the interests of justice.24

First ground of appeal – child objection defence - s 106(1)(d)

[71]              Ms Crawshaw submits the Judge failed to properly apply the correct test to determine  whether  the  child  objection  defence  was  made  out.  In  particular,  Ms Crawshaw submits, the Judge erred in law in failing to consider the weight to be given to the objections by M and N. As a result of that failure, the Judge did not properly assess the stated objections. In failing to consider the weight to be given to the objections by M and N the Judge omitted to consider a number of factors (which I will address in due course). Ms Crawshaw submits that had those factors been properly considered and taken into account, little weight should have been accorded the objections of M and N to returning to Australia.

[72]              Ms Crawshaw submits the Judge erred in law in a second way by purporting to exercise a discretion in respect of the s106(1)(d) defence alone, rather than considering the effect of the statutory discretion as the final step in the overall analysis required under s 106(1). In doing so the Judge also incorrectly approached the exercise of his discretion on the basis of an implied presumption of “upholding” the children’s objections in the absence of compelling reasons not to do so. Ms Crawshaw submits there is no basis in law for any such presumption.

[73]              Ms Crawshaw identifies what she submits is a third error of law. She says the weight to be given to a child’s objection, and any relevant matters determinative of that weight, must also be taken into account by the Court in the proper exercise of the statutory discretion under s 106(1). She submits the Judge’s failure to consider the

24     See discussion in LRR v COL, above n 11, on the admission of fresh evidence on appeal at [121]- [128].

weight to be given to the children’s objection, and the consequent failure to take that into account in the later overall exercise of his discretion not to order the return of the children to Australia, led to a further error of law.

[74]              Mr Ashmore, for the mother, concedes there are what he describes as “problematic aspects of the decision” of the Judge. In particular, and in relation to this defence, Mr Ashmore concedes that the Judge appeared to omit the “weight” step in the White v Northumberland25 approach.

[75]              Mr Ashmore also concedes that when the Judge purported to exercise his discretion in respect of the child objection defence alone, he appeared to proceed on the basis of some form of presumption in favour of retention in New Zealand which Mr Ashmore accepts is incorrect.

[76]              Having made those concessions, Mr Ashmore submits that it is not simply the case that return must be ordered if errors in the Judge’s decision are established. This Court is able to reconsider the case. In particular, Mr Ashmore notes the updated views of M and N, which he says are considerably more forceful than those before the Family Court.

[77]              In terms of the White v Northumberland approach, Mr Ashmore submits M and N clearly object (step 1); M and N are at an age and of sufficient maturity, so the second step is satisfied; and in relation to weight, the views of M and N are based upon their lived experience in Australia and they are strongly held and passionate. Most importantly, they make it very clear that it is return to Australia, rather than return to the family home with the father present, to which they object. Notwithstanding undertakings by the father, or other protective measures, they will not feel safe and comfortable in that environment.

[78]              Mr Ashmore refers to each of the factors Ms Crawshaw submits the Court should consider in relation to weight and says the father’s arguments are an invitation to this Court to disregard the very powerful objections raised by M and N.

25     White v Northumberland, above n 16.

[79]              Ms Houghton, lawyer for the children, submits the Judge was correct in concluding the child objection defence was made out. She submits both M and N clearly reported strong objections which were expressed in unequivocal terms and they each provided their own explanation. She submits that even if someone may have had influence over their views (though she says the evidence does not establish that), they are aged nearly 15 years (M) and 13.5 years (N). They are of an age and maturity in which it is appropriate to give weight to their views.

[80]              As to the weight to be given to their views, Ms Houghton submits that while the Judge did not address the issue of weight as a separate step in his decision, when the relevant part of the judgment is read as a whole, it is clear that the Judge found it appropriate to place significant weight on the views of M and N. She also submits there is no ground for not placing significant weight on their views having regard to the explanations given by them, their ages, their maturity and intelligence, and the strength of the language they have used.

[81]              Ms Houghton also responds to each of the factors which Ms Crawshaw submits must be taken into account in assessing weight and says that none of those alter her submission on the issue of the weight to be given to M and N’s views.

Legal principles

[82]              All counsel agree the approach the Court should follow is that set out in White v Northumberland,26 where the Court of Appeal endorsed the approach taken by the High Court. There are four steps, although, as Mr Ashmore points out, it is in fact a three step test with the discretion being the fourth step. The questions to be answered by the Court are:

(a)Does the child object to return?

(b)If so, has the child attained an age and degree of maturity at which it is appropriate to give weight to the child’s views?

26     White v Northumberland, above n 16.

(c)If so, what weight should be given to the child’s views?

(d)And how should the residual statutory discretion be exercised?

[83]              Steps 1 to 3 are cumulative threshold requirements. Only once all three have been satisfied does it become necessary for the Court to consider whether its discretion to refuse return should be exercised.27 There is “no hard and fast rule that the objection of a child will be determinative when [the child] reaches a particular age or state of maturity”.28 The position is as stated by Fisher J in S v S.29

… as a matter of degree the weight to be attached to the wish will turn upon all the surrounding circumstances. “Age and degree of maturity” are expressly referred to in s 13(1)(d) and para 30 of the report on the convention quoted earlier. Other considerations will include the cogency of any reasons given by the child and the possible role of external influences.

…

The weight to be attached to such wishes will turn upon age and maturity, the reasons given by the child, possible influences upon the child, competing considerations and all the surrounding circumstances.

[84]              In Re T,30 a judgment of the Court of Appeal of England and Wales, it was stated that “an ascertainment of the strength of the validity” of a child’s objection called for an examination of the following:

(a)What is the child’s own perspective of what is in her interests, short, medium and long-term? Self-perception is important because it is her views which have to be judged appropriate.

(b)To what extent, if at all, are the reasons for objection rooted in reality or might reasonably appear to the child to be so grounded?

(c)To what extent have those views been shaped or even coloured by undue influence and pressure, directly or indirectly exerted by the abducting parent?

(d)To what extent will the objections be mollified on return and, where it is the case, on removal from any pernicious influence from the abducting parent?

27     AHC v CAC HC Auckland CIV-2011-404-727, 4 May 2011 at [79]-[80].

28     JRW v EW HC Dunedin CIV-2006-412-720, 16 October 2006 at [49].

29     S v S [1999] 3 NZLR 513 (HC) at 522-523. Leave to appeal Fisher J’s decision was refused by the Court of Appeal.

30     Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192 (CA) at 204, per Ward LJ.

[85]              In the House of Lords decision Re D, Baroness Hale made the following observation regarding a child’s views:31

… there is a large difference between taking account of a child’s views and doing what he wants. Especially in Hague Convention cases, the relevance of the child’s views to the issues in the case may be limited. But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

[86]              No issue is taken  with  the  Judge’s  application  of  steps  1  and  2  of  White v Northumberland. Although the Judge set out the correct approach, he failed to consider step 3. The Judge was required to consider all relevant evidence and reach a conclusion on the weight to be attached to the views of M and N. The Judge erred in law in not doing so. I do not accept Ms Houghton’s submission that, from an overall reading of this part of the judgment, it can be discerned that the Judge placed significant weight on the views of M and N. That is not sufficient.

[87]              In order to determine the weight to be given to M and N’s objections, I will address each of the factors Ms Crawshaw submits the Judge failed to consider and which, she says, he should have considered. It is also necessary to consider those factors in the context of all of the evidence. But first I summarise the objections of M and N, as contained in the two detailed reports of lawyer for the children in the Family Court and her updated report dated 9 June 2020 filed in this Court. I also refer to the relevant parts of the report of psychologist Dr Farnsworth-Grodd and the letter from Dr Husain. Finally, I mention the position regarding S.

Lawyer for the children – 30 September 2019 report regarding M

[88]I start with the daughter M.

[89]              Ms Houghton made clear to M that the proceeding before the Court was not about where they live on a longer term basis, but whether they return to Australia or

31     Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 at [57].

remain in New Zealand while decisions were made regarding any longer term arrangements. She said that M understood that. She described M as thoughtful, articulate and mature for her age. She seemed to consider her responses before providing them to Ms Houghton and explained the reasons for her views. M said that she did not want to go back to Australia at all. She said she loved her current living arrangement and she felt, in leaving Australia for New Zealand, she had left “years of isolation”. She felt that she had no friends in her class at her old school, which had added to her feelings of isolation. She did not want to return to her old school, described it as an Islamic school, where she was subjected to very strict but pointless rules. She said her father hated her mother’s family, that he would say bad things about them. That, and the life her father insisted they all lead, had made her feel very isolated.

[90]              She told Ms Houghton she very much wanted to stay in New Zealand. It was important for her to be able to see her big sister every morning. She felt in Auckland she had a “support network”. If she had to go back to Australia it would be “hard to cope” and she would feel “alone and isolated like before”. The most important people she relied upon for support, aside from her mother, were her aunt, her older sister and older brother, who all live in New Zealand. She said, in particular, her sister A helped her with what she referred to as “family issues”.

[91]              She told Ms Houghton she very much liked her second older brother, H, living with her. She said that when he lived in Australia with them, he was her main support. It was H who encouraged her to see a school counsellor in Australia. She said that had to be arranged secretly so her father did not know. She told Ms Houghton she is seeing a psychologist in New Zealand and found her very helpful in dealing with her emotions, understanding things and coping techniques.

[92]              She said to Ms Houghton that even if she were living separately from her father in Australia, she would feel as if she was living back with him again, just not in the same physical environment. She used the word “horrible” to describe how it would feel if she were to return to Australia. She felt her father had not allowed her to grow. She told Ms Houghton of physical discipline and verbal abuse by her father, which she said happened often.

[93]              Although she had seen the school counsellor at her previous school, she did not find her much help. In Australia she had not been able to see a psychologist, as she needed a referral and her father was her doctor. Ms Houghton asked M about her subjective “happiness” scale going from zero (the least happy) up to 100. M said that if she had to return to Australia she would be a “zero out of 100” on that scale. She said that if she was in Australia and not living with her father, there would not be any physical abuse, but that would be the only difference with respect to her feelings of isolation and unhappiness.

[94]              She said that now she is away from Australia and living with her two older siblings, she could concentrate in class and did not think about family issues in school.

General practitioner letter – 25 October 2019 regarding M

[95]              Dr Husain is  a general  practitioner who has practised medicine  for over    20 years, with 15 years in general practice in Auckland. She is the family GP for all five children in New Zealand. M became her patient in August 2019. On her initial consultation with Dr Husain, M described how hard she had found her separation from her older brother and sister, H and A, over the preceding six  months.  M also told  Dr Husain that she had used a box cutter, found while arranging her sister’s clothes in Australia, to cut herself on her left arm just below the elbow. Dr Husain said that since arriving in New Zealand, M had enrolled at high school and appeared happily participating in activities.

[96]              Her opinion was that M (and N and S) presented to her with a range of physiological and psychological needs. M showed self-harm tendencies, repressed anger and severe progressive scoliosis. She said M has since started physiotherapy and is on a waiting list for a specialist appointment for a spine review, with plans for corrective surgery.

Doctor Farnsworth-Grodd – affidavit 30 October 2019 regarding M

[97]              Dr Farnsworth-Grodd is a registered clinical psychologist who currently works in private practice. She also works part-time for the Waitemata District Health Board as a professional lead/clinical advisor for community alcohol and drug services. She

holds a Doctor of Clinical Psychology degree from the University of Auckland, along with other professional degrees and diplomas.   She notes that her affidavit is not a    s 133 report or other court-ordered report. It is a summary of sessions provided to M (and N) from July 2019 to October 2019.

[98]              M and N saw Dr Farnsworth-Grodd at the request of their mother who was said to have had concerns that M was “not sharing her feelings” and had self-harmed earlier in the year. In relation to N, the mother was concerned that he was “shutting down”.

[99]              Dr Farnsworth-Grodd said she received instructions from counsel for the mother on 21 October 2019 to provide a summary of her conclusions, having seen M and N after their arrival in New Zealand. She was asked to include any views M and N had expressed to her regarding a possible return to Australia and the potential impact this move would have on them. The sources Dr Farnsworth-Grodd relied on were a family session on 27 July 2019 and five individual sessions with M between 17 August and 19 October 2019 (and two individual sessions with N on 31 August and 12 October 2019). I note that these sessions were all prior to either M or N being aware of the undertakings given by their father.

[100]           Dr Farnsworth-Grodd said M presented as a bright and articulate young woman who was keen to share her concerns. She was adamant she would not return to Australia and described the abusive life she experienced there. M said she struggled with recurring dreams of domestic violence by her father.

[101]           M self-harmed on 26 February 2019. She was aware her older sister, A, struggled with her mental health and M had found a box cutter hidden by her sister. She said her father showed no concern and removed the door from her bedroom. M reflected on who supported her and said she felt close to her older siblings. A is viewed as a “refuge” and someone she can talk to and who understands her. H is seen as a calming influence and also someone she can talk to.

[102]           M was adamant she did not want to return to family life in Australia, nor her former school. She  enjoyed  family support  here  and  her  New  Zealand  school. Dr Farnsworth-Grodd was of the opinion that M presented with psychological effects

of trauma having experienced domestic violence in her family life in Australia. Her eating issues and self-harm incident indicated her vulnerability and need for a nurturing family home environment. Dr Farnsworth-Grodd concluded:

A return to Australia could trigger further self-harm attempts. It is critical for [M’s] recovery from the psychological effects of trauma, and to prevent future self-harm attempts, that she remain in a supportive, loving and caring family home environment. This is provided by her New Zealand home where her older siblings play a pivotal role in providing support and understanding. These siblings are notable for their cohesion, love and support of each other.

Lawyer for the children –2 December 2019 report regarding M

[103]           Ms Houghton recorded that, at the start of her meeting with M on 2 December 2019, she repeated the explanation she had given M when she met with M in September 2019. That is, Ms Houghton distinguished between longer term decisions about M’s living arrangements and this proceeding about whether they return to Australia or remain in New Zealand while those longer term decisions were made. Ms Houghton said M again confirmed she understood the distinction.

[104]           Ms Houghton made M aware of the undertakings her father had recently given. M was not aware of that before meeting with Ms Houghton and told her that she was pleasantly surprised and pleased that her father had made that offer. However, she said she believed her father would be able to find a way around his undertakings if they returned to Australia. She told Ms Houghton that made a “tiny” bit of difference and she would feel a little less worried about returning to Australia if her father abided by his undertakings.

[105]           M said she would feel better knowing she was going back to a home she knew but then said it held a lot of bad memories which would be “gushing in their minds, making things worse”.

[106]           M again said she would not return to her previous school if she returned to Australia. She said that if she returned to Australia she would make sure she had regular calls and Facetime with H and A, but it would not be the same as seeing them. M said she used A as her main person to “rant” to, which she thought she did every day and often sought advice from her. She said she was getting on better with her

mother and that her mother was becoming an increasingly important person for her to be able to talk to. M said if she had to return to Australia, she would have to assume a lot of responsibility as she would be the eldest child.

[107]           Ms Houghton described a “happiness scale” of one to 10 and M said she would be a 10 out of 10 happy if she could stay in New Zealand and a two or three out of 10 if she had to return to Australia. Ms Houghton discussed with M what she might do to help herself if she returned to Australia. She said her mother would probably take them to a GP her mother knows and get a referral to someone like Dr Farnsworth- Grodd for her to talk to. M said she still saw Dr Farnsworth-Grodd and found those meetings helpful.

[108]           She said there would be one friend in Australia who would be pleased to see her but that friendship was not close anymore. She expressed concern about money for the family if they returned. She said she would not want to see her father at all because of how he had behaved when they all lived together.

[109]           In summary, in relation to M, Ms Houghton said that on both occasions she had met with her, she had clearly told her that she did not want to return to Australia. M said that objection stood whether or not she has any contact at all with her father. Ms Houghton said that while M’s objection in part seemed to be based upon her criticisms of life while living with her father, it also appeared to be based upon the levels of support and comfort she says she feels being near her family members in Auckland, particularly A and H, and her dislike of her school in Australia. M (and also

N) did not express any criticism to Ms Houghton of the standard of care their mother is currently providing to them, nor did M (or N) discuss the mother in unfavourable terms.

Lawyer for the children - 9 June 2020 report regarding M

[110]           This report was prepared by lawyer for the children to provide an update to this Court on the current views of M and N.

[111]           M told Ms Houghton of having nightmares about her uncle, her father or her brother appearing in Auckland and of running away from them. M advised

Ms Houghton that she had had this type of nightmare recently, as well as having them in the past since coming to New Zealand. M said that if the Court decided she needed to return to Australia, she would find that “devastating”. It would be “worse than sad”. The “worst thing” for her would be having to live separately from her sister and brother, her cousins, her aunt and her grandparents. She said that she would have to be forced to return to Australia and that if she were in Australia she would “feel alone, as if there was no-one there for her”. She repeated how much she valued living with her older brother H and her older sister A.

[112]           M told Ms Houghton that whether or not her father was in the home or living nearby,  or even in the same State, she did not want to be in Australia.   M asked    Ms Houghton to tell the Court she felt “that it was crazy for any adults to consider sending her back to Australia”. M explained that she felt like she had escaped prison and she found it unbelievable that a possible return to Australia was even being considered for her. She anticipated, if she did have to return, she would feel stuck, lonely, that she would be in an awful place, and back in prison.

[113]           M said that another negative about being in Australia would be the stress she would feel and the worry that she would feel and have to live with every day. She anticipated she would feel scared “24/7” in Australia and would worry that she was being watched, even if they were living in a different state from her father. She thought she would always feel scared and on alert. She gave an example of walking to school and expected, on every occasion, she would feel worried that her father, brother or uncle would see her and approach her. She had a fear that her father would find a way to get to her. She said she believed that her father, irrespective of any Court orders or undertakings given, would find a way to learn what school she was at and to find a way to, for example, walk past and greet her. She said that if that happened she would feel threatened.

[114]           M asked Ms Houghton to advise the Court that she does not regard her father as a good person because he mistreated her, mistreated her mother, mistreated her family and those who loved him. She does not trust her father.

[115]           On a happiness scale, overall she gave her life and happiness a 10 out of 10 score. Asked how she anticipated she would rate her happiness if she returned to Australia, M responded by asking if there were negative numbers on the scale. If not, M said she would definitely be a zero out of 10.

Lawyer for the children - 30 September 2019 report regarding N

[116]I now address the reports in relation to N.

[117]           Ms Houghton similarly made it clear to N that the proceeding before the Court was not about where they live on a long-term basis, but whether they return to Australia or remain in New Zealand while decisions were made regarding any longer term arrangements. She said that N understood that.

[118]           N told Ms Houghton he did not want to return to Australia and he maintained that view throughout their discussion. He was critical of his school in Australia and said the school he was attending in New Zealand was far better. He said he felt more “naturally comfortable” in New Zealand. He said one of the really good things about being in New Zealand was the support he had from his older brother, H. He said he can rely on H and he respects H a lot. He said the other very important people who support him are his mother, his aunt and his sisters.

[119]           He said that when he lived in Australia he felt as if he was under surveillance. He said he had hardly any choices and he did not feel free. When his older brother and sister left Australia for New Zealand, he felt happy for them. N said, “I say ‘no’ to Australia”. He said his parents should be able to resolve their disputes while he lived in New Zealand. He said he was “not interested” in going to Australia. He said he was “all settled” in New Zealand and did not want to return to Australia. He could not understand why anyone would think that was good for him.

[120]           When asked how he would feel if he needed to return to Australia, he said he would feel “a lot less secure, uncomfortable”. He said he wanted “definitely to stay right here”. He said “New Zealand is better for me”.  He slept better here.  He said the family members he lives with understand and can help him. He said he is having more “temper tantrums” but “when he gets cross, they help him”. N said he did not

understand why he should have to go back to Australia. The two main reasons he wanted to stay in New Zealand were “support and freedom”.

[121]           N described his father as an angry and aggressive person. N said he would feel “fearful and afraid” if he saw his father, saying that when his father gets angry, he is a very aggressive person.

[122]           Ms Houghton described N as articulate and thoughtful. He was able to explain to her the reasons for his views. He appeared to quietly consider his answers and comments before responding to her.

General practitioner letter – 25 October 2019 regarding N

[123]           N became Dr Husain’s patient in August 2019. Dr Husain describes him then as withdrawn, moody/volatile and underweight. He avoided eye contact and was reluctant to engage. He reported to her that the school he was attending was a huge change from his experience in Australia. Dr Husain says N has increased his after school activities. N has become more engaged with his health and wellbeing, while enjoying a close and supportive relationship with his older brother, H, and his first cousins.

Dr Farnsworth-Grodd – affidavit 30 October 2019 regarding N

[124]           Dr Farnsworth-Grodd said on first impression N was an articulate young man who was reticent to speak a lot with his siblings present. Family members stated that he had been irritable and angry on a number of occasions when having to wait or accommodate others’ needs.

[125]           She says N experienced home life in Australia as very difficult as his father was abusive, controlling and manipulative. Dr Farnsworth-Grodd said N fears a possible return to Australia. “Returning to Australia would be very bad”, “he’d act a kind father but he won’t change”.

[126]           N told her he felt isolated in Australia. But in New Zealand he is enjoys participating in a number of new interests and sporting activities. He described his

mother as “looking out for him”, “she’s kind, and cares, she always tries to help”. She said N is very close to his older family members. In particular, his older brother H was described as “calming” and “someone to talk to”, “He has kept us together, and I can turn to him at any time I need”. N expressed his gratitude for H’s help with school work and for being there when he or others need help or support.

[127]           Dr Farnsworth-Grodd’s opinion was that N presented with symptoms of depression. She had concern for his mood and the impact of trauma from experiencing family violence. She recommended further assessment through the Kari Centre and for the family to foster meaningful interaction time. She said that when she saw N on 12 October 2019, there was a noticeable shift in his engagement (improved eye contact), willingness and openness to share, as well as increased energy and enthusiasm for his interests, indicating an improvement in his mood. She attributes these changes to a caring and supportive family and school environment. She concluded:

It is critical for [N’s] stability of mood and recovery from experiencing trauma that he remain in a family home environment that is supportive, loving and caring. This is provided for him in New Zealand. The extent to which [N] relies on his older siblings, especially H, is also important to N’s emotional stability. He sees H as playing a pivotal role in providing calm and an understanding ear to his concerns. He thinks a life without living close to his older siblings in New Zealand would be “very bad”, “terrible”.

Lawyer for the children– 2 December 2019 report regarding N

[250]           I am mindful of what the Court of Appeal said in LRR v COL about the importance of considering whether courts in the requesting State can put in place protective measures to protect the child from a grave risk of an intolerable situation.55 However, despite the undertakings, there is still M’s perception of what life will be like on her return. When M spoke to lawyer for the children on 9 June 2020, she spoke of not trusting her father, that he made her feel unsafe and expressed a concern that irrespective of any undertakings, he would find her and that she would feel threatened and that she would feel like she was in the “Lion’s Den”; that she would always feel scared and would worry that she was being watched. She said this would be the case even if she was in a different state from her father.

[251]           This is a young woman who, in early 2019, as described by her mother, began to show increasingly volatile and irrational mood swings. Then in March 2019 she started engaging in self-harm. The mother says the severity and complexity of M’s mental health needs are high and they remind her of A’s mental health history.

[252]With that background there is the added effect on M of separation from H and

A. The mother expresses her fear that, if the children were to be returned to Australia, M’s mental health will deteriorate significantly. It would result in her being separated

55     LRR v COL, above n 11 at [111] to [114].

from H, A and the extended maternal family. She says the newly established sense of peace and security will be destroyed and M will suffer greatly.

[253]           Ms Crawshaw again makes the submission, in the context of this defence, that H and A had already left Australia and moved to New Zealand. She submits, while it can no doubt be difficult for younger siblings, older siblings routinely live away from the family unit to study, travel and ultimately to establish independent lives, as was the case with H and A. She further submits that the relocation to another country of older independent children cannot be relied on as a basis for uplifting younger children to establish a new “family unit” in that other country. Ms Crawshaw submits, for similar reasons, that the mother’s evidence as to M’s relationship with her New Zealand based aunt must be given little, if any, weight.

[254]           As I said above, this Court is not concerned with what might be said to be the general position regarding older children leaving home. It is the lives of these particular children that have to be considered.

[255]           Further, it is not only the mother’s view as to the effect on M. There is supporting evidence. Dr Farnsworth-Grodd used strong language to explain the importance of M remaining in the environment provided by her New Zealand home for her recovery from the psychological effects of trauma and to prevent future self- harm events. Her older siblings play a “pivotal role” in providing support and understanding in that environment.

[256]           Dr Husain’s letter is expressed in similar terms. She said that, in her professional opinion, the impact of returning the children to Australia would be detrimental to their wellbeing. Separating the younger siblings from the older siblings would cause a chain reaction of not only mental health breakdown in both groups but also deterioration of physical health.

[257]           I am mindful that both Dr Farnsworth-Grodd and Dr Husain gave their opinions before the father’s undertakings were communicated. But that, in my view, does not detract from the validity of their opinions which place significant weight on separation from the older two siblings.

[258]           In my view, having regard to M’s mental health vulnerabilities, the evidence establishes there is a grave risk her mental (and physical) health will suffer, to the possible extent of further self-harm attempts. The fear and anxiety M would experience by being returned, and the resulting separation from the two older siblings, H and A, and members of the mother’s wider family, would place her in an intolerable situation.

[259]           It is clear that M is a fragile young woman. She views Australia as a stressful place simply by reason of her father’s presence and regardless of any undertakings by him or Court orders. Although Court orders may keep her physically safe, and although counselling would be available in Australia, I do not consider that these two things would adequately address her anxiety about return. What M expresses goes beyond the inevitable consequences and upheavals of a Court ordered return. It arises from what she reports as her life experiences. There is no suggestion her anxiety would dissipate over a short period.

[260]           There is the third factor that Mr Ashmore relies on, which is the effect of return on the mother’s psychological wellbeing and the consequential impact on M. The mother says if an order for return is made it will place her in an impossible position as she will have to choose between protecting the younger children in Australia, if they are returned, or supporting A in New Zealand during this difficult time. She says the children are intelligent and will be well aware of the impossible expectations return will place on the family. She also says that returning to Australia equates to disempowerment for her, fuelled by the lack of family support and the psychological assistance she requires during Family Court proceedings.

[261]           I do not consider these matters add in any material way to the first two of   Mr Ashmore’s factors for M. Based on those two factors I find that the mother has made out the defence under s 106(1)(c)(ii) on the balance of probabilities for M.

[262]I now turn to N.

[263]           First, there are his own views about his return. In the most recent report of lawyer for the children it is recorded that he said he would always anticipate feeling

anxious, using the phrase “always on caution for Dad”. He anticipated his family would have to limit where they went because they did not trust his father. He thought that would be a very stressful way to live.

[264]           The mother also expresses concerns about the effect on N if he were required to return. She says “N stopped bed-wetting from the first night we arrived in New Zealand”. She says, however, that during the father’s visit to New Zealand, and upon learning that the father wanted them to go back to Australia, N experienced nightmares and bed-wetting. She says this has now stopped.

[265]           She expresses the view (as she said for M) that N’s newly established sense of peace and security will be destroyed and he will suffer greatly. The mother’s concerns have support in the opinions of Dr Farnsworth-Grodd and Dr Husain. The former describes him as initially presenting with symptoms of depression. She says he was struggling with irritability and intermittent outbursts of anger. She says these are often indicative of depression symptoms in children rather than sadness. N also reported to her diminished interest in getting involved in activity and was having some sleep problems. He was underweight, and suffered from a lack of enthusiasm and low energy. However, when she saw him in October 2019, there was a noticeable shift in his engagement, his willingness and openness to share, as well as increased energy and enthusiasm for his interests.

[266]           There is also the effect on N of the separation from H and A and other members of his mother’s family. M told Ms Houghton that one of the worst things about moving to Australia would be that he would have to live without his big brother and sister. That concern is echoed by the mother and has support from Dr Farnsworth-Grodd and Dr Husain. The former uses strong language, as she did for M, in giving her view on this issue. She says it is critical for N’s stability of mood and recovery from experiencing trauma that he remain in a family home environment that is supportive, loving and caring. This is provided for him in New Zealand. The extent to which N relies on his older siblings, especially H, is also important to N’s emotional stability. N says H is playing a pivotal role in providing calm and an understanding ear to his concerns.

[267]           Dr Husain also described changes in N’s physical health and wellbeing since he has been in New Zealand. She refers to all five siblings in New Zealand drawing strength from each other and from the maternal family. She says they find hope, understanding and happiness in each other. She says sending the three children back would cause a chain reaction, not only of mental health breakdown in both groups, but also a deterioration of physical health.

[268]           The issue is whether these concerns are sufficient to reach the high bar to establish this defence or whether the concerns are simply part of the inevitable stress of removal, which may have a psychological effect but are insufficient to reach the stringent standard.

[269]           Like M, N presents with mental health vulnerabilities. Those vulnerabilities have not manifested in  self-harm but, nevertheless, based on the opinions of both  Dr Farnsworth-Grodd and Dr Husain, those vulnerabilities are not insignificant. What I have said in [259] above applies equally to N. Then there is the compounding effect of separation from H and A. In my view, a combination of the anxieties that N would face on return, and having regard to his physical and mental health vulnerabilities and the resulting effect of separation from H and A, would place N at grave risk of being in an intolerable situation. The grave risk is that both his mental and physical health will suffer to an extent beyond the effects to be expected if he is returned.

[270]           I find the defence under s 106(1)(c)(ii) is made out on the balance of probabilities in relation to N.

[271]           Finally S. At his age he has not expressed any views on returning to Australia. The mother says that, in Australia, S was subjected to an environment where he saw and heard loud, aggressive, violent voices, mean gestures and frightened siblings. The father has emphatically denied those allegations. But what the mother does go on to say is that, as at September 2019, and at the age of four years, S was delayed in his toilet training.

[272]           If S returned on his own (and there is no agreement on the three children staying together), he would be separated from all four siblings with whom he currently

lives. If there was an order for return of the three children, S would be separated from H and A. The mother says that S calls his oldest sister “my [A]”. The mother says S loves A and is very attached to her. She says he has a unique bond with her and in her view separation from A would be detrimental to his wellbeing.

[273]           S was not referred to Dr Farnsworth-Grodd but he is a patient of Dr Husain. She says that when she first met S at the age of four, he was wearing a nappy and had not completed toilet training. She says that since arriving in New Zealand he has used his interactions with his siblings and his mother to centre himself and had recently been able to complete toilet training (her report is dated 29 October 2019). She describes him as being very attached to his older sister A and older brother H. She says with his new found security in New Zealand, S had been able to start going to kindergarten and interacting with children his own age as an equal and with confidence. As with M and N, her view is that separating S from the two older siblings H and A would have a consequential effect on mental and physical health.

[274]           There is limited evidence as to the likely risks for S. But sending him back on his own would result in separation from his four older siblings and other members of the mother’s family with a consequential effect on his physical and mental health. I consider the mother’s mental health may well be a relevant factor if S were the only child to be returned. If that were to be the case then, and on the assumption that the mother returned with her youngest child, her difficult family situation has the potential to affect the one very young child who is with her.

[275]           She is clearly concerned about the vulnerabilities of each of the four older children in New Zealand. She would be apart from them. She has given evidence that in 2014 she was suicidal and she cut one of her arms on multiple occasions. I accept that her mental health and wellbeing is at risk of deteriorating if she were required to leave four children in New Zealand and to return to Australia with her youngest child where she would be living without the emotional support of her extended family. In those circumstances there is a risk the mother’s mental health will affect S.

[276]           If all three children were to be returned, the mother would not have the anxiety of being separated from M and N but there would still be the impact on S of being separated from H and A.

[277]           Whether S is returned on his own or together with M and N, I consider the evidence establishes there is a grave risk that S would be placed in an intolerable situation. The grave risk, as identified by Dr Husain, is the effects on S’s physical and mental health. She says the impact “would be detrimental” to his wellbeing. In other words the grave risk would eventuate. There is no suggestion that these would be short-term effects.

[278]           The Judge was therefore incorrect in finding that the grave risk defence was not made out for S (proceeding as he did on a basis not argued for by the mother).

[279]I also find that this defence is made out for M and N, under s 106(1)(c)(ii).

Third ground of appeal – failure to properly exercise discretion under s 106(1)

[280]           Ms Crawshaw refers back to her previous submission under the first ground that the Judge erred in finding the defences of child objection and consent (acquiescence) made out. She submits the exercise of the Judge’s discretion was therefore wrong in law. Ms Crawshaw submits that even if this Court finds that the child objection defence is made out, the exercise of discretion in a case of a bare child objection is significantly different from a situation where multiple defences are made out. The weight to be given to the children’s objections is also a crucial factor to consider in any residual exercise of discretion.

[281]           Ms Crawshaw further submits that even if the Judge had been correct to find that the child objection and consent/acquiescence defence was made out, his approach to the exercise of discretion was wrong in the following respects: there was a failure to consider the weight to be given to the children’s objections; and there was a legally incorrect presumption that the children’s objections should be upheld in the absence of compelling reasons not to do so.

[282]           She submits the matters relied on by the Judge were exclusively welfare considerations. Further, two of the six factors concerned the two older children present in New Zealand who are not the subject of the application. Those issues should not have formed such a prominent part in the exercise of the discretion.

[283]           Finally, Ms Crawshaw submits the Judge failed to have regard to the following relevant considerations: the purpose of the Convention and its underlying rationale that welfare issues should normally be considered in the place of the child’s habitual residence; the mother’s retention of the children in New Zealand was wrongful; prior to the removal the mother had not taken any steps to obtain protection from the father’s alleged abuse; the weight to be given to the objections by M and N; the absence of any suggestion the mother will not return with the children to Australia if there is an order for their return; there are already parenting proceedings underway in Australia; and the undertakings given by the father to vacate the family home and provide financial support for the family. Ms Crawshaw concludes that had the Judge properly exercised his discretion an order for return would likely have been made.

[284]           Mr Ashmore acknowledges that the Judge’s treatment of discretion was “somewhat inadequate at times appearing to verge even on a presumption for retention”. He agrees that this Court is required to repeat the exercise and should do so in terms of Austin Nicholls.56 Mr Ashmore submits the discretion will be applied differently depending on the defence established. In relation to the child objection defence, it will be a more traditional balancing exercise but the factors on which the children’s  objection  is  based  will  be  significant.  In   terms  of  acquiescence,   Mr Ashmore submits it is difficult to imagine an order for return where that defence is established. As far as the grave risk of an intolerable situation defence, Mr Ashmore submits it is well established that when this defence is made out it would be a very rare case for the discretion to be exercised and an order for return made.

[285]           Ms Houghton submits that in considering the discretion, the Court will balance the considerations enshrined within the Convention of comity, deterrence and restoration of the status quo, as well as the nature of the defence, along with the welfare

56     See Simpson v Hamilton, above n 18.

and best interests of these particular children. Ms Houghton further submits that when considering the objects and purpose of the Convention alongside the impact upon M and N of not being listened to, the Court, in exercising its discretion, should determine it is in the children’s best interests to remain in New Zealand.

Legal principles

[286]           Section 106(1) of the Act confers a discretion to refuse to make an order for the return of a child if any of paras (a)-(e) is satisfied. The discretion is not unfettered and must be “exercised in the context of the Convention, having regard in particular to what would give effect to the Convention’s purposes in relation to [s 106(1)]”.57

[287]           The majority in the Supreme Court commented on the relationship between s 4 and the discretion saying:58

[50]     Hence, what is in the best interests of the particular child in terms of  s 4(1) cannot be the only or indeed the dominant factor in the exercise of the s 106 discretion. To take that view would be to “limit” the discretion contrary to s 4(7). In particular, the best interests of the particular child must be capable of being outweighed by the interests of other children in Hague Convention terms, if to decline return would send the wrong message to potential abductors. As we will develop below, striking the right balance between the best interests of the child or children on the one hand, and the deterrent policy of the Convention on the other, lies at the heart of the exercise of the s 106(1)(a) discretion. Waite J put the point well in W v W (Child Abduction: Acquiescence) when he said that it was implicit in the general operation of the Convention that the objective of stability for the mass of children may have to be achieved at the price of tears in some individual cases.

(citations omitted)

[288]           It is necessary to tailor the exercise of the discretion to the particular purpose and requirements of the exception in issue.59 The majority judgment states:

[39] It is desirable to enter a caveat at this point about the various grounds upon which an order for return may be refused. Statements in judgments or other writings about one ground should not be applied automatically or uncritically to another. General statements about these grounds, or exceptions as it may be convenient to call them, should be treated carefully, recognising their generality. They may not apply to all grounds and may need to be modified when a particular ground is being considered. When examining judgments and other publications it is important to be clear which particular

57     Secretary for Justice v HJ, above n 9, at [136].

58 At [50].

59 At [39].

exception is being addressed. Each exception has its own features and the court’s approach must be tailored to the particular purpose and requirements of that exception.

[289]           For example, if a grave risk of an intolerable situation is made out, as observed by Baroness Hale in Re S:60

… it is impossible to conceive of circumstances in which … it would be a legitimate exercise of the discretion nevertheless to order the child’s return.

[290]           On the other hand, in relation to the child objection defence, the exercise will be a more traditional balancing one. In Re M, Baroness Hale observed: 61

These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child’s views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child’s objections, the extent to which they are “authentically her own” or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child’s objections should only prevail in the most exceptional circumstances.

[291]           In LRR v COL the eighth of the eight observations made by the Court of Appeal concerned the exercise of the discretion. The Court of Appeal referred to what was said by the majority of the Supreme Court in Secretary for Justice v HJ,62 at [50] (set out in [287] above) as obiter and also that it should be read in light of the warning given by the majority in [39] (set out at [288] above).63 The Court of Appeal went on to say that, more generally, it had some reservations about the suggestion that where an exception is made out under s 106, the interests of the particular child may nonetheless give way to the goal of deterring potential abductors in the future.64

60     Re S (A Child)(Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 AC 257 at [5]. Cited with approval in LRR v COL, above n 11, at [96].

61     Re M, above n 15, at [46].

62     Secretary for Justice v HJ, above n 9.

63     LRR v COL, above n 11, at [98].

64 At [99].

Discussion

[292]           The Judge approached the exercise of his discretion on the basis that the child objection defence was made out for M and N; that the consent defence was made out for all three children; and that the grave risk defence was not made out for S (it was not considered for M and N). I therefore need to exercise my discretion afresh on the basis of the defences I have found are established.

[293]           In short, I have found the Judge was correct to find the child objection defence made out for M and N; that he erred in finding the consent (acquiescence) defence was made out; and that he erred in finding the grave risk defence was not made out for S. I have also determined the grave risk of an intolerable situation defence is made out for M and N.

[294]           It is clear that it is inconceivable that the discretion to order return would be exercised in circumstances where a grave risk of an intolerable situation has been made out.

[295]           If I am wrong in relation to M and N, and the only defence available in respect of those two children is the child objection defence, I would nevertheless have exercised my discretion to refuse to order their return. Factors which do not reach the threshold of a grave risk of an intolerable situation will nevertheless be relevant to an assessment of the best interests of the child. In conducting the balancing exercise, I would have taken into account on the one hand:

(a)The clear deterrent purpose of the Convention;

(b)The rationale that welfare issues should normally be considered in the place of the children’s habitual residence; and

(c)The interests of other children generally, in that declining an order for return may send the wrong message to potential abductors.

[296]           On the other hand, in considering the best interests of both M and N, I would have taken into account the following:

(a)They have both expressed a clear and consistent objection to returning to Australia;

(b)They are of an age and maturity where weight should be given to their views;

(c)Considerable weight should be given to their views for the reasons expressed earlier in the judgment;

(d)Both M and N have made improvements in their physical and mental health since being in New Zealand;

(e)There would be a detrimental effect on their health and wellbeing if they were returned to Australia. There is no suggestion that those would be short term effects; and

(f)The detrimental effects of separation from their two older siblings in New Zealand were M and N required to return.

[297]           I consider that the right balance would have been struck by exercising my discretion to refuse to order their return. This would not have been a situation where the “objective of stability for the mass of children” might be achieved “at the price of tears in some individual cases”.65 The effects on M and N go beyond mere tears.

[298]           The grave risk of an intolerable situation would still have been made out for S on this alternative.

[299]           Accordingly, for reasons different from those expressed by the Judge, I exercise my discretion to refuse to order the return of the three children, M, N and S to Australia.

Summary of conclusions

[300]In summary, my decision is as follows:

65     See quote passage from Secretary for Justice v HJ at [287] above.

(a)The father’s first ground of appeal that the child objection defence under s 106(1)(d) in relation to M and N was not made out fails;

(b)The father’s second ground of appeal, that the Judge erred in finding the consent defence under s 106(1)(b)(ii) was made out succeeds. The Judge erred. The father did not acquiesce in the three children, M, N and S remaining in New Zealand;

(c)The mother’s cross-appeal against the Judge’s finding that the grave risk of an intolerable situation defence under s 106(1)(c)(ii) was not made out in relation to S succeeds. The defence is made out in relation to S. I have also found that the defence is made out for both M and N; and

(d)The father’s third ground of appeal that the Judge failed to properly exercise his discretion under s 106(1) fails. Because of my findings in relation to the defences made out I have exercised the discretion afresh. For reasons different from those given by the Judge, he was correct not to order the return of M, N and S to Australia.

Result

[301]The father’s appeal is dismissed. The mother’s cross-appeal is allowed.

Costs

[302]           I reserve costs as I did not hear from the parties on this issue. My preliminary view is that costs should follow the event. If the parties are able to agree costs, a joint memorandum should be filed within 20 working days of the date of this judgment.

[303]           If costs cannot be agreed, the mother may file and serve a memorandum in support of an application for costs, within five working days of the date for the joint memorandum. Lawyer for the children may also file and serve a memorandum at the same time. Counsel for the father should then file and serve a memorandum within a further five working days.

[304]           Memoranda  should  not  exceed  five  pages excluding attachments.    I will determine costs on the papers.

Gordon J