Summer v Green
[2021] NZHC 3111
•18 November 2021
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-000857
[2021] NZHC 3111
UNDER The Care of Children Act 2004 IN THE MATTER OF
An appeal to the High Court pursuant to s 143 of the Care of Children Act 2004
BETWEEN
SUMMER
Appellant
AND
GREEN
Respondent
Hearing: 9 November 2021 Appearances:
D D Vincent and C L Hyslop for Appellant
M M Casey QC and L F Soljan for Respondent S W Houghton for the children
Judgment:
18 November 2021
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 18 November 2021 at 1.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
Cullinane Steele, Levin
L F Soljan/M M Casey QC, Auckland S W Houghton, Albany
SUMMER v GREEN [2021] NZHC 3111 [18 November 2021]
Introduction
[1] The appellant, Ms Summer,1 her partner, Mr Green, and their three children used to live in New Zealand. In recent years they have resided in Australia. Ms Summer decided to leave Australia and, on 28 August 2020, she and the children returned to New Zealand. She says that she left Australia because of physical and psychological harm inflicted on her by Mr Green and because of inadequate support available to her in that country. Mr Green denies any physical or psychological abuse. He did not consent to or acquiesce in the children’s relocation to New Zealand.
[2] Mr Green applied to the Central Authority of Australia to obtain an order for the return of the children to Australia under the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”). The Central Authority of Australia referred the application to the Central Authority of New Zealand and it appointed counsel to act for Mr Green in this country.
[3] Counsel applied for the return of the children on Mr Green’s behalf in January 2021. Return was opposed by Ms Summer. The application was heard by Judge Druce in the Family Court at Auckland on 13 April 2021. In a judgment issued on 26 April 2021, he ordered the return of the children to Australia.2 The children were required to return to their habitual residence in Australia in the care of Ms Summer. The order did not return the children to the care of their father; nor did it provide for him to have contact with them.
[4]Ms Summer now appeals Judge Druce’s decision. The appeal is opposed.
Background facts
[5] The following is taken from Judge Druce’s judgment, with some interpolation from an agreed chronology filed by counsel. The insertions are bracketed.
[3] The mother is Maori and a New Zealand national. The father was born in Canada but is a citizen of New Zealand as well as Canada. Both parents, and the children, travel on New Zealand passports.
1 All names have been anonymised in this judgment.
2 [Green] v [Summer] [2021] NZFC 3595.
[The parties commenced their relationship in 2009].
[4] All three children were born in New Zealand. [A] was born on 1 July 2010, [B] on 2 [July] 2012 and [C] on 2 November 2014. Both parents are the natural guardians of all three children.
[Following an argument in July 2011, the New Zealand police served a Police Safety Order on the father].
[5] During the mother’s pregnancy with [C], she suffered a mini-stroke. Further investigation revealed a benign tumour beside her pituitary gland. She underwent surgery on or about 10 March 2016 and was only discharged from hospital close to four months later, on 7 July 2016. On discharge, she was on crutches and experienced a slow recovery over many months. The father, along with other family members, [was] involved in caring for the children during the mother’s treatment and recovery. There is dispute as to the precise care arrangements after her discharge from hospital.
[In October 2016, a family violence incident was recorded by the New Zealand police. Both parents allege that there was a verbal argument which became physical. No complaint was filed by either party and no further action was taken].
[6] The parents resolved to make a new start in Australia. Both parents have family in the Queensland/Gold Coast areas. Both parents have expertise in the … industry.
[The family moved from New Zealand to Australia in February 2017].
[7] The move to Australia proved stressful with the family living in Byron Bay and the father working primarily in the Brisbane area, some four hours driving distance away. Physical violence erupted very early in the morning of 26 September 2017. [The incident was witnessed by B]. Both parents allege the other assaulted them. Each further alleges the other was problematically using substances; the mother claiming the father was verbally and physically abusive throughout their relationship when drinking alcohol (which he denies), the father alleging that the mother was using marijuana and [magic] mushrooms (which she denies). Each alleges the other was misusing family monies.
[8] The father was issued with a provisional Apprehended Family Violence Order (AVO) at 3.31 am on 26 September 2017 and was subsequently charged with, and convicted on, five related criminal offences. Subsequently, on 17 June 2019, two of the convictions were quashed on appeal.
[9] Further family violence incidents reportedly occurred in January 2018, [March 2018], August 2018 and on [31 July/1] August 2019. While the father faced six charges (including two of choking) arising from the last incident, he was acquitted on all charges at trial on 22 January 2020. Nevertheless, the hearing judge imposed a further two year AVO on the father which continues until 22 January 2022.
[10] Both parents describe the period from September [2017] as being very stressful. The mother’s perception is that they separated in September 2017
but that from time to time she relied on the father’s assistance at home with the children and on his financial support. The father’s perception is that they did not finally separate until the violent incident on [1] August 2019, although he does acknowledge periods of living apart after September 2017.
[The mother says that she and the children moved to a town in New South Wales and then to a holiday park in December 2017. The father moved in with friends, MM and AM, in Brisbane in January 2018].
[In August 2018, AM complained to the police that the mother was sending her angry text messages. During the same month the mother posted defamatory content on social media about the father and sent him abusive text messages. In November 2018, AM and the mother attended mediation and came to an agreement. Eventually, in January 2019, AM obtained a peace and good behaviour order against the mother. The mother applied for an AVO against AM but her application was found to be frivolous and vexatious. It was dismissed].
[11] Efforts to settle contact arrangements were initiated at various times after September 2017. By email dated 18 January 2018, the father forwarded a detailed parenting plan supporting his proposal of 50:50 care. The mother declined agreement saying in reply: “I want to see you burn.” In November 2018, [the mother attempted Family Dispute Resolution with Relationships Australia.] [Family Dispute Resolution Services] provided a certificate that [family dispute resolution] was not appropriate. In late 2018, [A’s] school referred concerns for [A] to the local Family and Community Services agency. The mother was shocked to be told that [A] was scared of her and communicated this to the father. The father became involved. During this period, he breached the AVO by taking the children to school. This was reported to the police by neighbours, not by the mother. He pleaded guilty to the charge and wrote a heartfelt statement to the presiding judge at the time, explaining why he was assisting the children at home. This is the only breach of AVO that he acknowledges.
[Records prepared by the Department of Community and Justice record various domestic incidents in August, November and December 2018. The outcomes recorded in November/December 2018 were as follows:
Outcome: Substantiated for risk to significant psychological harm, parental risk factor (physical disability), parental risk factor (domestic violence) for all children.
Additional information …Safety assessment deemed all children as “safe”.
The mother and the children were referred to Two Wings Psychology through Victims Services in December 2018].
[In July 2019 reports were made to the Department of Community and Justice with allegations made by and involving both parties].
[In late August 2019, the father moved to live with his aunt and uncle on the Gold Coast. At much the same time, the mother and the children moved to another town in New South Wales. They next moved to a women’s refuge and then to temporary accommodation in Sydney].
[12] Between August and November 2019, the father unsuccessfully attempted to establish contact by instructing a lawyer. By letter dated 7 November 2019, his lawyer proposed that the father have alternate weekend contact. The mother refused contact advising she and the children were in hiding. She did, however, agree to the paternal grandfather, who was travelling from Canada, having brief contact with the children while visiting Australia. It is reported that contact of some four hours occurred. This did not involve the father. They do not dispute that the father has had no contact with the children since 2 August 2019.
[The mother relocated to New Zealand with the children on 28 August 2020. The father says he only found out that the mother and children had gone to New Zealand on 16 September 2020. The mother says that he found out earlier and that he sent her an abusive and threatening message on 29 August 2020. He denies this].
[13] The father did not file court proceedings prior to the mother’s departure from Australia with the children on 28 August 2020. His evidence is that he was careful not to approach the children directly for fear of breaking his AVO. His lawyer received advice from the mother by email dated 27 January 2020 that she was working at the children’s primary school and, relying on the AVO, she warned the father not to come within a 100 metres of the school.
…
[15] The mother explain[ed] that she returned with the children to New Zealand because she feared for her and her children’s safety. She claim[ed] that the father breached his AVO 117 times between January 2020 and August 2020 when she left. She also state[d] that he faces seven charges for breach of the AVO. However, no documentary evidence has been provided in support of these claims and they are denied entirely by the father.
[16] The mother acknowledge[d] sending false email information to various persons about her circumstances and whereabouts from time to time. This include[d] an email to a family friend on 16 September 2020 and to the paternal grandfather on 3 September and 13 December 2020.
[In October 2020, the mother applied without notice to the Family Court in New Zealand for a temporary protection order and an interim parenting order. She obtained both orders.]
[The mother has moved to a town in the South Island and enrolled the children in the local school].
Family Court decision
[6]The issues before the Judge were as follows:
(a)was the father exercising his rights of custody at the time of the children’s removal (s 105(1)(c) of the Care of Children Act 2004);
(b)was there a “grave risk” that return would:
(i)expose one or more of the children to physical or psychological harm (s 106(1)(c)(i)); or
(ii)place one or more of the children in an intolerable situation (s 106(1)(c)(ii)); and
(c)did one or more of the children object to being returned to Australia and had that child (or those children) attained an age and degree of maturity at which it was appropriate, in addition to taking into account any views the child or children expressed, to also give weight to the child’s or children’s views (s 106(1)(d)).
[7] Dealing with the first issue, the Judge was satisfied that the father retained parental responsibility for his children under relevant Australian legislation and that the jurisdictional requirements set out in s 105(1)(c) of the Act were met. He considered that it was clear that the father had communicated his opposition to the mother returning to New Zealand with the children. The mother had failed to tell the father of her planned return to New Zealand with the children and “covered her tracks” by obtaining leave of absence for the children from their school at the relevant time.
[8] The Judge then turned to assess the grave risk defences. He noted that the term “grave risk” requires that the risk of harm from return must be a weighty and substantial, going beyond the “expectable disruption to the children of being again uprooted from their present circumstances”.3 The Judge recorded that the mother accepted that the legal system in Australia was capable of protecting the children. He also noted that the onus was on her to satisfy the Court on the balance of probabilities that one or more of the children would be exposed to physical or psychological harm or placed in an intolerable position by being returned to Australia.
[9] The Judge found that there was a very low risk of physical harm to the children. He then considered the risk of psychological harm. He accepted that the mother would
3 [Green] v [Summer], above n 2, at [25].
experience real distress if the children were to be returned, noting her evidence that she would travel with them to Australia. He also noted that inevitably the children would be exposed to her distress and that any contact the children might have with their father in Australia would be likely to require Court orders. The Judge noted the mother’s evidence that there had been 117 breaches of the AVO between January and August 2020. He described that as an “extraordinary claim”4 and observed that there was no detailed account of the breaches and that they were not corroborated by any documentary evidence. He noted the father’s denials. He commented that both parties had reported incidents to the Australian police and that the police had responded promptly. He concluded that the children’s psychological safety would not be likely to be compromised by hidden family violence if they were to be returned to Australia. He also observed that the mother and children had lived in Byron Bay for some three and a half years where they had been supported by various persons and agencies, that the children had positive experiences of attending the local Byron Bay school and that they were able to talk positively about their former classmates with their lawyer. He concluded that there was no grave risk of any of the children being exposed to psychological harm if they were returned to Australia.
[10] He then turned to consider whether or not the children would be placed in an intolerable situation if they were returned. The Court’s key concern was the mother’s ability to financially support the children and meet their everyday needs while the substantive Court proceedings were conducted and care and contact issues were resolved. He referred to information counsel for the father had filed from Work and Income New Zealand detailing the benefits that would be available for the mother and her children if they were returned to Australia. He also referred to a page on Work and Income New Zealand’s website containing information about the international custody dispute payment, which is a special benefit for parents in the mother’s situation. He was satisfied that if the mother had no other financial support reasonably available, she would fall within the special benefit entitlement criteria, which would cover her while she was in Australia because of a Hague Convention order to resolve the custody dispute. He noted that the onus was on the mother to establish that there was a grave
4 At [32].
risk the children would be in an intolerable situation if returned to Australia. The evidence did not persuade him of this.
[11] Accordingly, the Judge held that s 106(1)(c) defences were not established on the balance of probabilities.
[12] The Judge then referred to s 106(1)(d). He was satisfied that both A and C objected to returning to Australia but that B did not object. The Judge considered that B’s then age – 10 years and nine months – and his maturity meant that it was appropriate to give weight to his views. He was not however satisfied that C’s views reflected what he actually saw and heard or that his anxiety and objection arose from his own experiences. He found that C was not of an age or maturity that it was appropriate to give weight to his views. The Judge next considered the weight to be given to A’s views. He considered that A had become caught up in emotionally distancing himself from his father and that there was significant evidence suggesting that he was likely to have been influenced by the views of others around him, especially his mother. The Judge considered that A’s view of his life in New Zealand was romanticised, noting that there was no evidence to suggest that he had had actual contact with his extended family in this country and that there was no evidence of any family members living in the town in which he and his mother were residing. The Judge concluded that A was aligned with his mother’s views. He gave A’s objections significant weight but he considered that that weight had to be limited by the context
– that A had been living with his mother and the likely influence her strong feelings and views had had on him.
[13] Having reached this conclusion, the Judge turned to consider the best interests and welfare of A and his siblings, along with the purposes and principles of the Hague Convention. The Judge found that the welfare considerations did not outweigh the usual Convention principles of having substantive parenting and relocation issues considered in the children’s country of habitual residence prior to their removal. He noted that the mother would return to Australia with the children if they were required to return and that she and the father wanted the children to remain living together. The Judge considered that there are significant forensic issues to be determined in relation
to the parents’ behaviours and violence and considered that they were better resolved in the community in which the events unfolded.
[14] Accordingly, the Judge made an order pursuant to s 105 of the Act that each of the three children be returned to Australia. He gave the parties time to settle the arrangements for their return.
Subsequent events
[15] The mother did not cooperate in settling arrangements for the children’s return and the Central Authority sought a warrant to enforce the Judge’s orders. The matter came before the Judge on 13 May 2021. He considered that it was apparent that the mother had no intention of complying with the Court order or of cooperating with the Central Authority. He observed that it was in the children’s best interests for there to be a prompt response by the Court and noted that every attempt should be made to enforce return of the children without delay. He invited the Central Authority to file a draft warrant.5
[16] Ms Summer filed her notice of appeal on the following day. She also applied without notice for a stay of the return order. That application came before Powell J in this Court. He was not satisfied that the application for a stay should be dealt with on a without notice basis. He also observed that it was not clear that any of the grounds of appeal was seriously arguable and commented that Ms Summer’s affidavit was, at the very least, incomplete. He directed that Ms Summer’s application should be served on the Central Authority and on Ms Houghton as lawyer for the children.6
[17] The matter came back before Powell J on 26 May 2021. The Judge expressed concern that there was almost no information before the Court as to the circumstances of the children. He ordered an interim stay until Monday 31 May 2021 and directed the parties to file further details about the children’s circumstances by 28 May 2021.7
5 [Green] v [Summer] FC Auckland FAM-2021-004-55, teleconference minute dated 13 May 2021.
6 [Summer] v [Green] HC Auckland CIV-2021-404-857, minute dated 14 May 2021.
7 [Summer] v [Green] HC Auckland CIV-2021-404-857, minute dated 26 May 2021.
[18] The stay application came before Powell J again on 31 May 2021. The Judge stayed execution of the warrant to enforce the order for return pending the outcome of this appeal.8
[19] Ms Summer then applied for leave to adduce further evidence in support of her appeal. She sought leave to file a further affidavit she had sworn on 10 June 2021 containing additional information she had obtained from the New South Wales police as well as an affidavit from Geoffrey Shirley, a clinical psychologist. She also sought that a psychologist’s report on the children be obtained under s 133 of the Act. Powell J granted the application. He also directed that Dr Sarah Calvert, a clinical psychologist, prepare a s 133 report.9
[20] Since the hearing before the Family Court Judge a number of further documents have been filed:
(a)four affidavits from Ms Summer dated 14 May 2021, 28 May 2021, 10 June 2021 and 13 August 2021;
(b)an affidavit from Mr Shirley;
(c)an initial s 133 report and then an updated s 133 report from Dr Calvert;
(d)two affidavits from Mr Green dated 11 May 2021 and 20 August 2021;
(e)an affidavit from Jarret Le Roux, a digital forensic expert (there is a challenge to the admissibility of this affidavit); and
(f)an affidavit from Patricia Bailey, the manager of the Central Authority of New Zealand.
[21] Unfortunately, the hearing of this appeal has been delayed. Initially it was set down for 29 June 2021. Powell J vacated that fixture and put in place a replacement fixture on 6 July 2021. He later vacated this fixture and put in place an alternative
8 [Summer] v [Green] [2021] NZHC 1261.
9 [Summer] v [Green] [2021] NZHC 1504.
fixture on 31 August 2021. These various adjournments were to allow for the filing of the additional evidence. In the event, all counsel sought an adjournment of the 31 August hearing because Dr Calvert had not been able to consider some of the additional materials filed. Moore J allowed the application and set the matter down for a fixture on 9 November 2021. Because of the Covid-19 lockdown, the hearing had to proceed by way of audio visual link.
The appeal
[22] The appeal is brought pursuant to s 143 of the Act. Under s 143(4), the High Court Rules 2016 and ss 125 to 130 of the District Court Act 2016, with all necessary modifications, apply to the appeal as if it were an appeal brought under s 124 of the District Court Act.
[23] Pursuant to r 20.18 of the High Court Rules and s 127 of the District Court Act, the appeal is by way of rehearing. It was common ground between counsel that the appropriate approach to the appeal is that discussed by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar,10 where the Chief Justice observed as follows:
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
Where, as in this case, there is further evidence on the appeal, a de novo assessment of that evidence and its effect is required.11
Submissions
[24]Mr Vincent, for Ms Summer, submitted that the questions for the Court are:
10 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 and see
Simpson v Hamilton [2019] NZCA 579, [2019] NZFLR 338 at [44].
11 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
(a)whether the children are protected from return by the grave risk exceptions contained in Art 13 of the Hague Convention and given effect to in this country in s 106(1)(c) of the Act;
(b)whether the Court should place weight on the objection to return expressed by A and find that the child objection exception in s 106(1)(d) is made out; and
(c)if the Court finds that the child objection exception is made out, whether the Family Court correctly exercised its discretion to order the return of all children, despite the finding that the defence had only been made out in respect of A.
[25] Mr Vincent relied substantially on the further affidavits filed by Ms Summer, on the affidavit by Mr Shirley and on the psychological report prepared by Dr Calvert pursuant to s 133 of the Act. He submitted that the grave risk exceptions are made out on the evidence now before the Court. He relied extensively on the Court of Appeal’s decision in LRR v COL.12 He argued that there is a risk of psychological harm to the children and that that risk is grave given the documented history of domestic violence. He acknowledged that there is conflicting evidence and there is no simple answer as to how that conflict can be resolved. He submitted that there is however independent extraneous evidence which supports Ms Summer’s version of events. He also submitted that there is a grave risk of an intolerable situation for the children, because of the likelihood of financial hardship if they are required to return to Australia and because of the probability of a decline in Ms Summer’s mental and physical health which would likely impact her ability to protect the children. He acknowledged that there are protective mechanisms available in Australia but submitted that the domestic violence that has occurred over the years has not been controlled by the AVO put in place. He argued that there are no other protective measures that the Court can rely on to protect the children if they are returned.
[26] He then turned to s 106(1)(d) and referred to A’s views. He did not dispute that A has been influenced by his mother and he accepted that this is relevant to the exercise
12 LRR v COL [2020] NZCA 209.
of the Court’s discretion. He also accepted that the discretion only falls for consideration if the Court does not uphold the grave risk exceptions but does uphold the child objection exception for A. He argued that A’s views are deeply held and that there is potential for significant psychological impact if they are not accommodated. He argued that the discretion ought to be exercised in favour of allowing the children to remain in this country.
[27] Ms Casey QC, appointed by the Central Authority to act for Mr Green, emphasised the limited nature of the appeal. She noted that the Court is not required to determine whether or not domestic violence has occurred or where the children should live in the long-term. Rather, she argued that the Court is required to determine where these issues should be determined – in Australia or in New Zealand. She accepted that the assertions made by the mother are of such a nature and of sufficient detail and substance that they suggest risk. However, she argued that the grave risk exception in s 106(1)(c) is nevertheless not made out taking into account the circumstances as a whole, including whether there are adequate protection measures available in Australia. She noted the competing factual allegations and submitted that this is essentially a “he said/she said” case, with both parents painting a very different picture of their life together in Australia. She argued that there is no reliable information before the Court on which it can reach any conclusion as to who is right. She argued that the Judge did not err based on the information that was before him at the time, either in his assessment of the grave risk exceptions or his exercise of the discretion having found that A’s views should be taken into consideration. She further argued that none of the new evidence now before the Court undermines the Judge’s conclusions.
[28] Turning to the risk of children being placed in an intolerable situation, Ms Casey sought to distinguish LRR on the facts, arguing that the mother in LRR was much more fragile than Ms Summer. She discussed Mr Shirley’s assessment of Ms Summer’s fragility and argued that his assessment is “light” on detail. She also noted that Dr Calvert did not comment on Mr Shirley’s findings. She submitted that even if there is some risk to Ms Summer, it is not a grave risk and it does not preclude the children being returned to Australia.
[29] Ms Casey dealt with the child objection exception by submitting that, in considering the exercise of the discretion, the Court is essentially faced with a balancing act – welfare considerations against Convention principles. She argued that the Courts in Australia are best placed to resolve the factual disputes and to conduct a full and comprehensive assessment of the children’s welfare and best interests.
[30] Ms Houghton, for the children, noted that the children have not seen their father since August 2019. She focused on the children’s views and whether the strength or otherwise of these views suggests a grave risk of harm or an intolerable situation for the children if their views are overruled and a return to Australia is ordered. She accepted that B’s and C’s views are neither strong nor free of influence and that it would be inappropriate to give them any significant weight. She pointed out that if the child objection exception is substantiated, it applies only to A. She referred to Dr Calvert’s report and noted that it is clear from that report that the children are at risk of being deprived of the opportunity to have any relationship or contact with their father. She expressed concern at this.
[31] Ms Houghton submitted that there is no ideal outcome for the children because there appears to be a level of risk to their emotional wellbeing whether they remain in New Zealand or return to Australia. She argued that if the children, in particular A, are ordered to return to Australia, the impact on them is likely to turn on Ms Summer’s reaction and whether she allows her reaction to impact her parenting in such a way and to such an extent that the children’s situation worsens and becomes intolerable. She did not support any outcome that would result in the siblings being separated.
Analysis
Relevant law
[32]Relevantly, s 105 provides as follows:
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
(b)the court is satisfied that the grounds of the application are made out.
…
[33] Before the Judge, it was argued that Mr Green was not exercising his rights of custody at the time of the children’s removal and that he was therefore not entitled to seek the return of the children. The Judge did not accept this argument. He found that Mr Green had satisfied the jurisdictional requirement set out in s 105(1)(c).
[34] There has been no appeal against this aspect of the Judge’s decision. Further, it is clear that the children are in New Zealand, that they were removed from Australia (which is a contracting State) in breach of Mr Green’s rights of custody and that they were habitually resident in Australia before their removal to New Zealand. It follows that, under s 105(2), the Court must make an order for their prompt return to Australia, subject however to s 106.
[35]Relevantly, s 106 provides as follows:
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—
…
(c)that there is a grave risk that the child’s return—
(i)would expose the child to physical or psychological harm; or
(ii)would otherwise place the child in an intolerable situation; or
(d)that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate, in addition to taking them into account in accordance with section 6(2)(b), also to give weight to the child’s views; or
…
[36]Ms Summer relies on s 106(1)(c)(i) and (ii) and (d).
[37] The grave risk exceptions were discussed by the Court of Appeal in LRR. The Court there restated, and in some minor respects clarified, the principles that govern Hague Convention proceedings in New Zealand.13 The grave risk asserted in that case was that return would place the children in an intolerable situation. Many of the Court’s observations are however of wider application.
(a)The Court emphasised that the Hague Convention is framed on the assumption that prompt return, in cases where no exception applies, is in the best interests of the child. The Convention however 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 the child. The exceptions are integral to the scheme of the Convention. While it is not the function of a requested State to conduct a wide-ranging enquiry into the best interests of a child, the prompt and focused enquiry required is designed to ensure that the outcome does serve the interests of the child.14 The Court referred to s 4 of the Act, which deals with the child’s welfare and best interests and requires that they be the first and paramount consideration in the administration and application of the Act. It noted that this imperative applies to proceedings seeking the return of a child.15
13 LRR v COL, above n 12, at [148].
14 At [76]-[79].
15 At [83].
(b)The Court made a number of observations about the grave risk exceptions. It commented as follows:
[87] First, as noted above, there is no need for any gloss on the language of the provision. It is narrowly framed. The terms “grave risk” and “intolerable situation” set a high threshold. …
[88] Second, the court must be satisfied that return would expose the child to a grave risk. This language was deliberately adopted by the framers of the Convention to require something more than a substantial risk. A grave risk is a risk that deserves to be taken very seriously. That assessment turns on both the likelihood of the risk eventuating, and the seriousness of the harm if it does eventuate. …
[89] Third, consistent with the focus of the exception on the circumstances of the particular child, a situation is intolerable if it is a situation “which this particular child in these particular circumstances should not be expected to tolerate”.
[90] Fourth, the inquiry contemplated by this provision looks to the future: to the situation as it would be if the child were to be returned immediately to their State of habitual residence. The court is required to make a prediction, based on the evidence, about what may happen if the child is returned. There will seldom be any certainty about the prediction. But certainty is not required; what is required is that the court is satisfied that there is a risk which warrants the qualitative description “grave”. …
[91] Fifth, it is not the court’s role to judge the morality of the abductor’s actions. It is not in a position to do so, and this is in any event irrelevant to the forward-looking inquiry contemplated by the Convention. …
[92] Sixth, the burden is on the person asserting the grave risk to establish that risk, as the language of art 13 and s 106 of the Act makes plain. But the process for determining an application under the Convention is intended to be prompt, and the court should apply the burden having regard to the timeframes involved and the ability of each party to provide proof of relevant matters. …
[93] Seventh, although the question is whether there is a grave risk that return will place the child in an intolerable situation, the impact of return on the abducting parent may be relevant to an assessment of the impact of return on the child.
…
[95] However, the focus remains on the situation of the child. It is necessary for the person opposing return of the child to the requesting State to articulate why return would give rise to a grave risk of an intolerable situation for the child. Is it
because there is a grave risk that the child will be exposed to incidents of violence directed at the child’s mother? Is it because there is a grave risk that actual or feared violence will seriously impair the mother’s mental health and parenting capacity? The person opposing return needs to establish to the court’s satisfaction the factual foundation for the specific concerns they advance.
[96] Eighth, s 106(1) confers a discretion on the court to decline to make an order for the return of the child if one of the specified exceptions is made out. However, … if a grave risk of an intolerable situation is made out, “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”.
…
[100] … what matters is that if the return of a child to that child’s State of habitual residence would expose the child to a grave risk of an intolerable situation, it would not be appropriate to make an order for the return of the child. The interests of the child in not being exposed to that risk cannot be outweighed by the goal of deterring future would-be abductors.
(Citations omitted)
[38] Taking into account these various observations, I turn to consider the grave risks asserted by Ms Summer.
Grave risk of exposing the children to physical harm?
[39] The Judge found that the children’s return would not expose them to physical harm. This conclusion was supported on the evidence before him. It is also supported in the additional evidence which has been filed. There is no challenge to the Judge’s finding in this regard.
Grave risk of exposing the children to psychological harm?
[40] It is argued that the Judge erred in his finding that there was no grave risk of psychological harm to the children if they are returned. Mr Vincent argued that there has been a clear and consistent pattern of ongoing domestic violence and that there is a risk of psychological harm to the children if they are exposed to a renewal of this conflict. He submitted that:
(a)there is a high risk of ongoing domestic violence between the parents if Ms Summer returns to Australia with the children;
(b)there is a high risk that the incidents will be serious and that further charges could be laid against Mr Green for domestic violence offences;
(c)there is a high risk of the children being exposed to further domestic violence;
(d) there is a risk of the children witnessing a serious harm incident; and overall, a grave risk of psychological harm to the children if they are returned.
[41] The risk of psychological harm to the children and the gravity of that risk turns on the allegations of domestic violence made by the mother against the father. As Ms Casey noted, this is very much a “he said/she said” case. This places the Court in some difficulty because there has been no viva voce evidence and neither party has been subjected to cross-examination. Commenting on the question – what is the Court to do in such circumstances? – the Court of Appeal in LRR said as follows:
[111] There is no simple and universally applicable answer to that difficult question. It seems to us that in such circumstances there is much to be said for the approach adopted by the English courts, which is helpfully summarised by the Supreme Court in Re E:16
36 There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. … Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co-operation between liaison judges are so helpful. Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues.
[42] Accordingly, I first consider the mother’s allegations of domestic abuse and, as part of that process, the father’s responses. Where there is other evidence I briefly
16 Re E (Children) (Abduction:Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144.
comment on that evidence as well. I then consider the protective measures available in Australia.
[43] There is evidence of discord and domestic violence in New Zealand prior to the parties’ travel to Australia in 2017.
(a)The New Zealand police have a record of an incident in July 2011, where Ms Summer asserted that Mr Green grabbed her by the hair and threw her to the ground following a verbal argument. According to the police report, Mr Green stated that it was a verbal argument only, that he wanted to leave and go for a walk but that she would not let him do so. The report notes that Ms Summer was vague about the details and that, when questioned, she spoke to the police for about 45 minutes and made a statement but did not mention key details. Nevertheless, the police records that she had a small cut on her finger and red marks on her knees. As a result of this incident, a public safety order was served on Mr Green.
(b)There was another incident in October 2016. Mr Green complained that he and Ms Summer had had a heated verbal argument and that there was a subsequent physical altercation. He had two small scratches on his face and he was agitated and sweaty. He asked the police to do a welfare check on Ms Summer. He did not however want to make a complaint of assault against her. When the police visited Ms Summer, they observed that she had been crying and that she had a couple of small scratch marks on her face and on her left shoulder. The children were calm. Ms Summer essentially confirmed Mr Green’s version of events. She did not make a complaint about his conduct either.
[44] In her initial affidavit filed in opposition to the application for return, Ms Summer asserted that between January 2020 and 28 August 2020, Mr Green breached the AVO in Australia 117 times. She said that seven of these breaches resulted in pending charges. In one of her further affidavits filed after the Family Court hearing, she said that there were 17 incidents of domestic violence between
September 2017 and May 2020. She annexed copies of police reports she had obtained from Australia. I have considered those reports. They do not unequivocally support either the mother or the father. They do not suggest that there were 117 breaches of the AVO as asserted by her. Nor do they show that there were 17 different incidents of domestic violence listed over the period September 2017 to May 2020. One event appears to have been listed on multiple occasions. A number of the listed events record “no offence – verbal argument” or “no offence – no offence detected”. The reports suggest that Ms Summer has overstated the extent of the domestic violence between her and Mr Green. They do however suggest that there were rather more incidents than Mr Green admits.
[45]There were some key incidents. I refer briefly to each.
[46] On 26 November 2017, an altercation occurred between the parties. Mr Green was subsequently charged and convicted of three charges – common assault, stalking/intimidation and hindering the police in the execution of their duty. There is no summary of facts presented to or findings of fact made by a Court in the evidence adduced by the parties and (predictably) each parent has a very different story to tell. The police applied to the Court in Byron Bay to obtain an AVO against Mr Green. Their version of events, which was presented to the Court, is not entirely consistent with the evidence of either party. In summary:
(a)It is the mother’s evidence that the father was heavily intoxicated, that he tried to open her phone and that when he was unable to do so, he punched her in the head and verbally abused her. Mr Green told one of the children that their mother was a slut. He locked her out of the house and tried to push her as she was climbing onto a balcony to get back in. He pulled the phone lines off the wall and disabled the wi-fi. She subsequently discovered that she had three broken ribs and a fractured arm as a result of what occurred;
(b)The father’s evidence is that he discovered that the mother was taking marijuana and magic mushrooms and that her took the drugs off her.
When she found out what he was doing, she started screaming and the police were called;
(c)The police statement records that a member of the public had reported hearing banging and smashing and a female voice saying: “get off me”. The mother told the police officers that attended that the father had thrown her phone outside and locked her out of the house. When she was asked, she said that she had not been assaulted. The police statement recorded that the mother had no injuries and that the father appeared calm. He resisted being placed in the police car however. There was no mention in the statement of the father being intoxicated at the time.
As noted, Mr Green was found guilty of three charges arising out of this incident. He was put on a good behaviour bond and required to comply with the AVO.
[47] It is impossible to reconcile these conflicting accounts. It is however clear that something happened. It is nevertheless common ground that there was contact thereafter. The mother’s evidence is that the incident resulted in the parties separating; the father maintains that final separation did not occur until August 2019. Both agree that there was “toing and froing” between the parties after the incident.
[48] The next significant incident occurred in January 2018. Again, there are conflicting accounts:
(a)The father says that on 13 January 2018, the mother assaulted him with a closed fist in front of the children. He told her she should not act like that in front of the children. She replied: “Yes I can, I will just tell the cops you hit me”. He tried to leave the house so that things would not escalate but the mother grabbed the collar of his shirt and ripped it off him. He said that A witnessed this;
(b)The mother denied this. She says that the father did not want to attend a school meeting about the violence and how the children had been
affected by it and that he breached his AVO conditions and tried to convince A to lie to the school to get her into trouble. She was investigated, she cooperated completely and she was cleared of all allegations;
(c)As a result of whatever occurred, Mr Green was charged with contravening the AVO and with common assault. There is nothing before me detailing the events which led to the charge of assault. Mr Green was convicted in the Byron Bay Court but he successfully appealed his conviction. The convictions were set aside. Neither party has put the Court record before me. I do not know why the appeal succeeded.
[49] Once again, it is clear that the mother and father continued to have contact subsequent to this event. He was trying to arrange contact with the children. She was refusing to engage with his attempts. It is the father’s evidence that during 2018 he had contact with both the mother and the children and that, despite the AVO, the mother demanded that he come back and help her with the children. She asserts that he was barely around and that the only times she attempted to contact him was when he refused to help financially. Some altercations occurred between them and some of these were referred to the police but the police records indicate that when they enquired, generally no offence was detected.
[50] Family and Community Services became involved in late 2018. The father maintains that they became involved because the children raised concerns about their mother’s behaviour and drug use. Her evidence is that she was investigated but that she was never asked to undergo a drug test and that Family and Community Services did not have any concerns about the children being in her care.
[51] Various files from the Department of Communities and Justice (formerly known as the Department of Family and Community Services) have been provided but they are very heavily redacted. It is not clear who made some of the reports. It is not always clear what specifically was investigated or what was discovered in the course of the investigations. It is however clear that what was generally being
investigated was the risk of significant psychological harm to the children. The parental risk factors seem to have been either domestic violence by the father or drug use by the mother.
[52] I have also considered the records obtained from the Department of Communities and Justice made available to Ms Bailey. Those records cover the period August 2018 to November 2020. They concern various incidents said to have occurred between the parents. Most of the incidents were investigated and the allegations were generally found to be substantiated. The records refer to a safety assessment report completed on 12 December 2018 which deemed that all children were safe. I do not however have a copy of that assessment. It appears that an earlier assessment was done in August 2018 in relation to the mother’s alleged drug use. Again, it seems that all children were then deemed safe, although I do not have a copy of that assessment either.
[53] In November 2018, Mr Green was charged with a breach of the AVO. Again, there are differing versions as to what occurred:
(a)The father says that he was taking the children to school and the mother to a hospital appointment. The mother was yelling at A and a neighbour called the police. He breached the AVO but what occurred led to a variation of the order to enable contact to take place. He said that the variation was with the mother’s consent. There have been no further breaches since that date. He was very remorseful for his actions and wrote a letter of apology to the Court. As a result, the charge against him was dismissed.
(b)She says that there was a “verbal conflict”. She acknowledges that the charge was dismissed after he wrote a letter of apology to the Court.
(c)Community and Justice Services noted that the father attended at the mother’s home, that he was verbally abusive and threatening, that the police were called and that the father was arrested for breaching the AVO. As already noted, the outcome was recorded as being
substantiated for risk of significant psychological harm; nevertheless all children were assessed as safe.
[54] The most serious incident is said to have occurred in August 2019. Again, the parties present two very different versions of what occurred:
(a)The mother says that she and the children were living at the Bryon Bay Holiday Park and that the father was camping nearby. He was lecturing A and A called him out. She heard a loud whack and A screaming at the top of his voice. The father then punched A on his back and chased after him. He threw the mother into the lounge and she landed on the ground really hard. She yelled at A to run away and the father then lifted her by her throat off the ground and slammed her down again. He was strangling her the whole time and she passed out. She remembered a horrified look on A’s face and she woke up to hear A crying next to her “Mum, mum, please don’t be dead”. The father had been drinking on the day in question. He walked to the police station and made a false claim about her stealing his friend’s camera equipment. She called the police and the police saw her bruises and scars and took statements.
(b)The father denies the incident. He went to talk to the police to make a report about the missing camera lens and when the police tried to speak with the mother, she started making allegations against him of assault. The resulting criminal charges against him were false. The prosecution case against him failed and he was found innocent of all charges.
(c)There is no Court record available. There is however a letter from the father’s solicitors, confirming that the charges were dismissed but that the Court imposed an AVO against Mr Green after taking into account his “criminal history”.17 As already noted, this AVO expires on 22 January 2022.
17 Insofar as I am aware, the father’s criminal history is limited to the domestic violence and hindering police convictions noted in [46].
[55] Although there are a number of other reported incidents, there does not seem to be anything of great significance.
[56] It appears from the Australian police reports that there are two warrants outstanding for Mr Green’s arrest – one issued on 14 September 2020 and the other 18 September 2020. Both are recorded as being outstanding. Mr Green says he was unaware of this and that he has not been evading the police.
[57] It is also clear from the materials made available that there have been a number of breaches of the AVO. One of the conditions of the AVO required that Mr Green was not to approach Ms Summer or contact her in any way, and that he was not to go within 100 metres of any place where she lives or any place where she works. Although Mr Green only admits to one breach of the AVO, it is apparent that it has been breached on multiple occasions.
[58] On the materials available to me, I accept that there has been domestic violence. It is impossible to say who has done what and to whom. It appears that the mother is prone to hyperbole and that she has developed a deep-seated loathing of the father. The assertion that there is a grave risk of psychological harm rests in part on her unsupported assertions, but there are key incidents which resulted in Mr Green being charged. While some of the charges were ultimately dismissed and others were overturned on appeal, there nevertheless appears to be factual basis for the mother’s concerns. If her allegations are true and if the children were to witness further domestic violence between their parents, I accept that this would be likely to cause them psychological harm.
[59]Can this risk of harm be addressed in other ways?
[60] As enjoined by the Court of Appeal in LRR, I have to look to the immediate future – to what the situation will be if the children are returned to Australia. The return order made by the Family Court does not require that the children be returned to their father. Nor does it require that the mother or the children have contact with the father. If they return to Australia, it is likely that the children will not be in the immediate vicinity of their father. He resides on the Gold Coast in Queensland. The
children previously resided in New South Wales. Presumably the mother and children will return to Bryon Bay. According to the Judge, it is a four hour drive from Brisbane to Byron Bay. Mr Green will be in breach of the AVO if he endeavours to have contact with Ms Summer and the children.
[61] Further, and again as enjoined by the Court of Appeal in LRR, I must have regard to the protective measures available in Australia. As noted, the father is currently subject to an AVO. I acknowledge that the father has been subject to an AVO since September 2017 and that it did not prevent the subsequent incidents discussed above. Nevertheless, the evidence of both parties suggests that there was ongoing contact with the consent of both. Further serious incidents have been limited and there does not seem to have been anything of significance between August 2019 and the children’s abduction from Australia in August 2020. This suggests that the AVO, and no doubt the risk of consequences if it is breached, is having some effect. The police in Australia have responded promptly in the past and there is no reason to suppose that they would not do so again if anything untoward occurs.
[62] I also note the evidence of Dr Calvert in her updated s 133 report. She commented as follows:
Even if the events the children have experienced are as described by [Ms Summer] (which would be family violence at the more severe end of the spectrum), protections could be put in place in Australia (in either Queensland or New South Wales) which would likely reduce any negative psychological impacts. The children have already experienced living in Refuge and those organisations provide significant support to families using their services. The children have had an involvement with [Family and Community Services] and will be on various data bases as a result, meaning the rapid access to statutory welfare should be possible (and the same with the Police). There are highly competent therapy services available in both NSW and Queensland and services are available through the Australian schooling system (which has already been accessed for these children). The children have whanau and friends who can provide support and ‘eyes on’ to ensure safety and support for the children.
[63] If directed to do so, the Central Authorities in both Australia and New Zealand can ensure that the appropriate agencies in Australia are notified of the children’s return. This would seem to be a sensible precaution.
[64] Considering all of these matters, I am not persuaded that Ms Summer has established a grave risk that return would expose the children to psychological harm. The threshold is high. Assessing the available evidence as best I can and taking into account the availability of protective measures in Australia, I do not consider that the risk is as grave as is alleged. I agree with the Judge’s assessment notwithstanding the additional evidence now available.
Grave risk of placing the children in an intolerable situation?
[65] As the Court of Appeal observed in LRR, a situation is intolerable if it is a situation which the particular child should not be expected to tolerate.
[66] Mr Vincent argued that there are two risks which need to be considered in this regard – first, the risk of financial hardship to Ms Summer and the children if they are required to return, and secondly, the risk of a decline in Ms Summer’s mental and physical health if she goes back to Australia.
[67] The mother says in one of her affidavits that she is unable to access benefit support in Australia, save for a family tax credit of around $260 a week. She exhibits a one page document which she says is sourced from the Australian Immigration Authority and which, she says, states that she is not an Australian resident for social security purposes. This however is generic information not particular to her circumstances. Curiously, she has not produced any evidence as to her income in either Australia or New Zealand. Nor has she given any information about her assets or liabilities. There is hearsay evidence suggesting that she told Mr Green’s father that she had bought a house.
[68] As against Ms Summer’s assertions, there is evidence suggesting that financial means/support could be available to her if she returns to Australia:
(a)She could work. She has a history of working in Australia. There is no suggestion that she cannot engage in work if she returns. Indeed, she told the school authorities in Australia that she was coming to New Zealand to work;
(b)there is an international custody dispute payment available from Work and Income New Zealand once Court proceedings are initiated in Australia. Mr Green has already engaged a lawyer and he has given an undertaking that he will issue proceedings when the children are returned to Australia. The Judge concluded that Ms Summer was eligible for this payment. There is nothing to suggest otherwise that that conclusion was wrong;
(c)Mr Green has deposed that Ms Summer will be eligible to apply for legal aid in Australia and she can seek free legal assistance from community centres in that country;
(d)Mr Green is liable for child support payments. He says that he will pay child support as assessed;
(e)there is the family tax credit referred to by Ms Summer.
[69] Mr Vincent asserted that the best evidence of what the children would experience on their return to Australia is the experience they had before leaving Australia in 2020. He argued that they moved between refuges and stayed in temporary accommodation for the weeks leading up to their departure and that while the mother had sporadic work as a cleaner and in social media, she relied on food parcels which she obtained through volunteer work to feed her family.
[70] There is some force in Mr Vincent’s submission. However, as against this, it appears that Ms Summer supported the children in Australia once the parties separated, albeit with financial assistance from Mr Green. She says that separation occurred in September 2017. On her evidence, she lived as a single parent in Australia for almost three years post separation and prior to removing the children from that country.
[71] I now turn to consider the risk to the mother’s health if return is ordered. As the Court of Appeal noted in LRR, the impact of return on the abducting parent can be relevant to an assessment of the impact of return on the children.
[72] Mr Shirley examined Ms Summer and diagnosed that she suffers from post- traumatic stress disorder (PTSD). She was described as reporting constant anxiety in Australia and it was noted that she presented with “debilitating anxiety” on her return to New Zealand. She has been referred for further counselling and prescribed medication. Mr Shirley concluded that it is “highly probable” that Ms Summer’s PTSD will heighten considerably if she and the children have to return to Australia, potentially significantly compromising her ability to effectively “(co)-parent the children”.
[73] Mr Shirley’s report was based on a meeting with Ms Summer. He relied predominantly on her self-reporting, either to him or to others. The report proceeds on what appears to be a misunderstanding – namely that Ms Summer, if returned to Australia, will be co-parenting the children with Mr Green. There is no certainty of that. It is a matter for the Courts in Australia if return is ordered. Mr Shirley does comment that the mother could engage in counselling, inter alia to prepare her for return, if ordered. That is a sensible suggestion. I do not know if it has been taken up.
[74] Mr Green has deposed that he holds grave concerns for the mother’s mental health and behaviour.
[75] I accept Mr Shirley’s evidence that Ms Summer suffers from PTSD and that this condition is likely to get worse if she and the children are required to return to Australia. I am not however persuaded that if this occurs, it will necessarily place the children in an intolerable situation. As I have noted, there are protective mechanisms available in Australia, both for the children and for Ms Summer. She previously had a therapeutic relationship with Two Wings Psychology in New South Wales, which continued during 2020 prior to her leaving Australia. Presumably it would be open to her to re-engage with that agency. The Family Court, as part of any removal order, can direct the Central Authority to ensure that the appropriate Australian agencies are notified of the children’s pending return. That should assist to ensure that assistance is available if required. The children can be provided with skilled neutral and independent therapy as recommended by Dr Calvert in her s 133 report and, as she noted, there are many agencies in Australia which could assist.
[76] Overall, after considering the protections available, I am not persuaded that the risks of financial hardship and/or deterioration of the mother’s health will lead to a grave risk of an intolerable situation for the children.
Conclusion – the grave risk exceptions
[77] For the reasons I have set out, I am not persuaded that either of the grave risk exceptions in s 106(1)(c) are made out. I now turn to consider s 106(1)(d).
The child objection exception
[78] A opposes return. The Judge found that his objections were clear and firm and that, taking into account his age and maturity, it was appropriate to give weight to them. There is no cross-appeal by Mr Green challenging this finding.
[79] The Judge also found that B objected to returning to Australia but that his account of what occurred in that country was insufficiently rooted in what he saw and heard. The Judge considered that B’s objection did not permit any reasonable link being drawn between his experiences and his concerns about his father. The Judge found that B was not of an age and maturity where it was appropriate to give weight to his circumstances. This finding was not challenged by Ms Summer.
[80]C did not object to returning to Australia.
[81] It follows that the child objection exception available under s 106(1)(d) is made out in respect of A, but not B and C. This leads to consideration of the discretion conferred in s 106(1).
The s 106(1) discretion
[82] The Judge weighed up the best interests and welfare of A and his siblings, along with the purposes and principles of the Hague Convention. He found that the general welfare considerations did not outweigh the usual Convention principles of having the substantive parenting and relocation issues properly considered in the children’s country of habitual residence prior to their removal.
[83]I am not persuaded that the Judge erred.
[84] When the discretion comes into play, the Court can consider the nature and strengths of the child’s objections, the extent to which they are “authentically” the child’s own, whether they are the product of the influence of the abducting parent and the extent to which they coincide or are at odds with other considerations which are relevant to the child’s welfare, as well as general Hague Convention considerations.18
[85]I have reservations about the nature and strength of A’s objections.
[86] Dr Calvert’s s 133 report deals with the children’s views. She considered that A’s objections to return are based on a number of factors, not all of which relate to the allegations made by Ms Summer about Mr Green and his behaviour and not all of which relate to A’s remembered experiences of Mr Green. She expressed the view that A has been exposed to the “extremely intensely reported and experienced views of his mother” and that the mother’s views are reinforced by a number of sources whose only information about the situation comes from her. Dr Calvert observed that A has no independent and external sources which challenge or contest the views he has formed or remind him of other experiences he has had of his father. She noted that A reports only one incident where he says he was subject to violence from his father, and that that was at the low to moderate end of the family violence spectrum. She noted that A has not been supported to retain positive memories of his father, or of the periods when his father provided significant care to him.
[87] Dr Calvert also referred to A’s lived experience of this mother’s ill health and the impact of this on the family. She noted that he has twice experienced his mother becoming seriously unwell to the point where she was hospitalised and unavailable to him, and she considers that it is likely that those experiences were extremely stressful, even traumatic, for A. She noted that during these periods A and his siblings were primarily looked after by Mr Green, something they have now forgotten.
[88] Dr Calvert further commented on the relatively unstable living conditions which were a feature of A’s life after his parents separated. She noted that the family
18 Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 at [46].
had always had a somewhat unstable living situation and that this has been exacerbated by the conflict between the parents.
[89] Considering these various matters, Dr Calvert concluded that the current influences on A are so strong and so complete that he is unable to consider the implications of his objections to returning to Australia. She considered that he has not yet achieved the developmental capacity to consider and contest information, given his strong alignment to his mother’s perspective. She observed that A is unable to consider any alternative information or perspective in respect of his father or even to consider that such could exist. She commented that A does not seem to see dehumanising references to his father as inappropriate and wrong.
[90] I am not persuaded that A’s objections are authentically his own. Rather, it seems likely that they are the product of the influence of Ms Summer as the abducting parent. This is relevant to the exercise of the discretion.
[91] Dr Calvert did observe that, given the current dominance of the mother’s views in all areas of the children’s lives, a return order would likely be a shock to the children and cause them distress. She then stated as follows:
Nonetheless all three children are aware that this could happen and were less disturbed about this than might be expected.
[92] It is also noteworthy that Dr Calvert suggested that the Court might wish to consider the psychological harm which might be done to the children should their relationship with their father be irrevocably severed or so severely disrupted that it cannot later be recovered. This was a factor which was also emphasised by Ms Houghton as counsel for the children. Again, it is relevant to the exercise of the discretion.
[93]There are other factors as well:
(a)Ms Summer is clear that she will return to Australia with the children if they are required to return. That gives some comfort. They will have their mother to fall back on and to look after them when they arrive in Australia;
(b)both Ms Summer and Mr Green want the children to remain together. Although the child objection exception is only made out in respect of A, it would be inappropriate to order only that B and C return to Australia. Nobody wants that and it would not be in A’s best interests to separate him from his siblings;
(c)insofar as I can glean from the materials made available, the children were happy in the school they attended in Byron Bay;
(d)it seems from the father’s evidence that Ms Summer’s brother lives in Queensland and that she has a number of cousins in Australia. The children could liaise with their whānau in that country. There is nothing to suggest that they have had any dealings with whānau in New Zealand;
(e)there is evidence suggesting that the lease of the rented accommodation that the mother and children are currently occupying in New Zealand is about to come to an end. If that is the case, then there will be disruption for the children in any event;
(f)the children’s return to Australia affords them the opportunity to have contact with their father in the event that the Australian Courts, after making appropriate enquiry, determine that that is in the best interests of the children. This opportunity would likely be denied if the children remain in New Zealand and the mother continues to actively obstruct any ongoing relationship between the children and their father.
[94]The normal Convention principles also fall into the mix.19
[95] Article 1 of the Convention states that its objects are to secure the prompt return of children wrongfully removed to or retained in any contracting State, and to ensure that the rights of custody and of access under the law of one contracting State are effectively respected in other contracting States.
19 Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289 at [70].
[96] The Convention seeks to avoid the wrongful removal of children from their home country. That is what happened in this case. The mother had lived and worked in Australia for an extended period and the children had resided in Australia. On the evidence, all were well integrated into life in Australia, attending both pre-school and then school in that country. They were involved in a range of extracurricular activities. Their school was aware of their circumstances and it kept a close eye on them. Return is to a place familiar to the children.
[97] In addition, the Australian Courts are better placed to determine the parenting dispute in this case. All relevant records about past events are held in Australia. All prospective witnesses (with the exception of Ms Summer and the children) are in Australia. The father has provided an undertaking to issue proceedings in the Australian Court upon the children’s return. That should ensure that the parenting dispute is progressed promptly in the Australian Courts.
[98] I have considered whether or not any conditions should be imposed to ensure the children’s safe return. Given that there is already an AVO in place, I do not consider that it is appropriate to impose any further conditions.
Conclusion
[99] The appeal is dismissed and the order for return is confirmed. The stay granted by Powell J is lifted. The matter is remitted to the Family Court so that it can make the final arrangements for the children’s return to Australia. Return should occur as soon as is reasonably practicable.
[100] I direct that the children should be told about this judgment by somebody independent, either by Ms Houghton or by an agent appointed by Ms Houghton in the town in which the children are currently residing. I expect the parents, and in particular the mother, to honour this direction. It is in the best interests of the children.
[101] I do not know whether either party seeks costs. If costs and/or disbursements are sought, I direct as follows:
(a)any application for costs/disbursements by the father is to be advanced by way of memorandum, to be filed and served not more than 10 working days after the date of release of this judgment;
(b)any memorandum in reply from Ms Summer is to be filed and served not more than 10 working days thereafter;
(c)memoranda are not to exceed five pages.
I will then deal with the issue of costs and disbursements on the papers unless I require the assistance of counsel.
[102] Finally, I thank all counsel for their helpful and thoughtful submissions. Hague Convention cases are never easy and I was very much assisted by the responsible approach all took to this matter.
Wylie J
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