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Robinson v Robinson

Robinson v Robinson

Case [2020] NZHC 1765 22 July 2020

Child Custody

Child Objection Defence

Grave Risk Defence

Consent/Acquiescence Defence

International Child Abduction

Family Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Robinson v Robinson

Details

AGLC: Robinson v Robinson [2020] NZHC 1765
Case: [2020] NZHC 1765
Decision Date: 22 July 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Robinson v Robinson was heard on appeal. The father, Dr Robinson, sought the return of his three children who were living in New Zealand with their mother, Mrs Robinson. The Family Court had previously declined an application for an order for the children's return under the Care of Children Act 2004. The appeal centred on the Family Court's findings regarding the child objection defence, consent/acquiescence defence, and grave risk defence, as well as the exercise of discretion under s 106(1) of the Act.

The High Court found that the Family Court had erred in its approach to the child objection defence and the consent/acquiescence defence. The court held that the objections of the two older children to returning to Australia were valid and should have been given considerable weight. Furthermore, the court found that the father had not acquiesced in the children remaining in New Zealand. However, the court upheld the Family Court's finding that the grave risk of an intolerable situation defence was made out for the youngest child, as well as for the two older children. Based on these findings, the High Court exercised its discretion under s 106(1) and refused to order the return of the three children to Australia. The father's appeal was dismissed, and the mother's cross-appeal was allowed. Costs were reserved pending an agreement between the parties.

Orders