Summer v Green - [2021] NZHC 3111

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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…

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 Summer v Green

Details

AGLC: Summer v Green [2021] NZHC 3111
Case: [2021] NZHC 3111
Decision Date: 18 November 2021

CaseChat Overview and Summary

This appeal concerns a family dispute over the care of three children who have been relocated from Australia to New Zealand by their mother. The father sought an order for their return to Australia, arguing that they had been wrongfully removed and retained. The Family Court found in his favour but the mother appealed. The appeal raises issues about the interpretation and application of the Hague Convention and the weight to be given to the objections of the children to being returned. The mother argued that there was a grave risk that the children would be exposed to psychological harm or placed in an intolerable situation if they were returned. The Court found that there was no grave risk of psychological harm or of an intolerable situation. The Court was not persuaded by the evidence that the children would be placed in an intolerable situation if they were returned to Australia, noting that protective measures were available and that the father was subject to an AVO. The Court found that the child objection exception was made out in respect of one of the children, who objected to returning to Australia. However, the Court held that the general welfare considerations did not outweigh the usual Hague Convention principles of having the substantive parenting and relocation issues properly considered in the children’s country of habitual residence prior to their removal. The Court concluded that the best interests and welfare of the children, along with the purposes and principles of the Hague Convention, required that the children be returned to Australia. The appeal was dismissed and the order for return was confirmed.

Orders