Lrr v Col

• Jurisdiction: New Zealand
• Judge: Goddard J
• Judgment Date: 03 June 2020
• Neutral Citation: [2020] NZCA 209
• Date: 03 June 2020
• Docket Number: CA743/2018
• Court: Court of Appeal

Between

LRR

Appellant

and

COL

Respondent

[2020] NZCA 209

Court:

Kós P, Brown and Goddard JJ

CA743/2018

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Family — appeal against a decision ordering the appellant mother to return the parties child to Australia — volatile relationship — the father had been convicted in Australia on charges of assaulting the appellant and breaching family violence orders — whether there was a grave risk that the child's return to Australia would place him in an intolerable situation — approach to “grave risk” — Care of Children Act 2004 — Hague Convention on the Civil Aspects of International Child Abduction

Counsel:

B J R Keith and D D Vincent for Appellant

J C Gwilliam and H Joubert for Respondent

M M Casey QC and D Sothieson for Central Authority as Intervener

• A The appeal is allowed.

• B The application to have the child returned to Australia is declined.

• C The orders made by the High Court at [4] and [6] of the Minute dated 29 November 2018 are set aside.

• D Leave is reserved to either party to apply to this Court for any consequential orders that may be required.

• E There is no order as to costs.

JUDGMENT OF THE COURT

Table of contents

	Para no
Background	[9]
The Convention and the New Zealand implementing legislation	[35]
Family Court judgment	[46]
High Court judgment	[57]
Appeal to this Court	[65]
Submissions of mother on appeal	[69]
Submissions of father on appeal	[71]
Submissions of Central Authority	[74]
The Convention — general principles	[76]
The relevant exception in this case: a grave risk of an intolerable situation	[86]
Applying the exception in practice	[101]
Ensuring the inquiry is prompt and that relevant evidence is before the court	[101]
The importance of protective measures that remove or reduce risk	[111]
Conditions attached to return orders	[115]
Application to adduce further evidence	[121]
Applying the principles to this case	[129]
Concluding remarks	[147]
Result	[151]

REASONS OF THE COURT

(Given by Goddard J)

1 In August 2017 the mother returned from Australia to New Zealand, with her son H who was then two and a half years old. H was born in Australia and was habitually resident in that country. H was wrongfully removed from Australia for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction (the Convention). The Convention is implemented in New Zealand law by sub-pt 4 of pt 2 of the Care of Children Act 2004 (the Act). The father, who lives in Australia, sought the return of H to Australia under the Convention. The New Zealand Central Authority applied to the Family Court under the Act for an order for H to be returned to Australia. The Family Court declined to order H's return on the basis that one of the exceptions in the Convention applied: the Judge considered that there was a grave risk that the child's return to Australia would place him in an intolerable situation. 1

2 The father appealed to the High Court. The High Court held that the exception did not apply and made an order for H's return to Australia. 2

3 The mother now appeals to this Court. The central issue is whether there is a grave risk that the return of H to Australia would place him in an intolerable situation: a situation which he cannot, in all the relevant circumstances, be expected to tolerate.

4 The relationship between the mother and the father was dysfunctional and volatile. Family violence orders had been made against the father by the Australian courts on a number of occasions. At the time the mother and H left Australia, the father was facing charges of assaulting the mother, and breach of family violence orders. He has since been convicted on a number of those charges.

5 The mother's mental health is frail. She has a history of depression and substance abuse. In mid-2017 the mother was suffering from depression, severe anxiety, and stress. Unsurprisingly, these were all either caused or exacerbated by the dysfunctional relationship and the family violence she was experiencing. She was drinking to excess. These factors combined to seriously impair her parenting capacity.

6 In these circumstances H's situation in mid-2017 was, as the father's counsel rightly conceded, intolerable.

7 If H is now required to return to Australia, his mother — who is, and has always been, his primary carer — would return with him. The mother is currently coping well in New Zealand: she is caring for H, she has significant family support, and she has part-time employment. If she returns to Australia she would be living in proximity to the father, whom she fears (a fear that has been shown to be well-founded). She would be isolated, with no family or close friends to provide emotional and practical support. Her financial and housing situation would be precarious: a further source of stress. The expert psychological evidence before us (which was not before the Family Court or the High Court) confirms that there is a grave risk that return of the mother and H to Tasmania would cause a relapse in terms of the mother's mental health and substance abuse, and that this would significantly impair her parenting capacity. That outcome would be intolerable for H. It is possible that H could be cared for by his father and/or his paternal grandparents if his mother became incapable of caring for him. But the loss of his mother (his primary caregiver throughout his life) as a functional parent and caregiver, because she has been rendered incapable of caring for him by mental illness and/or substance abuse, is not a situation that this young child can be expected to tolerate.

8 On 3 April 2020, we allowed the mother's appeal. 3 Our reasons are set out in this judgment.

Background

9 The mother is a New Zealander. She was born in New Zealand and grew up in New Zealand. She moved to Sydney after finishing high school and lived in Australia for the next 10 years, apart from a three-year period spent in New Zealand while completing a degree at Victoria University. She moved to Darwin in 2013. There she met the father, an Australian citizen. In Darwin she was working in a casino. She was also working as an escort. She says the father, who used methamphetamine and dealt in drugs to support his habit, introduced her to that drug. Methamphetamine became a part of their lives.

10 The couple lived together for a time, and the mother became pregnant with H. He was born on 15 February 2015.

11 It seems that the relationship between the mother and the father was volatile and dysfunctional from an early stage, well before the birth of H. Social services in Darwin were involved with the family and were concerned about H's welfare. The mother says there were many incidents of domestic violence on the part of the father while they lived in Darwin.

12 As noted above, the mother has a history of depression and frail mental health. She has for many years struggled with alcohol abuse. In Darwin their lifestyle involved use of drugs, drug dealing on the father's part, and difficulties with their finances and housing. That included a period of homelessness and living in a car while the mother was pregnant with H. This appears, unsurprisingly, to have exacerbated the mother's mental health and alcohol issues. The mother says she experienced regular incidents of psychological and physical abuse during this period.

13 In April 2015 the mother and H relocated from Darwin to Hobart, Tasmania. The mother says she had had enough of the life they had been leading in Darwin. She moved out of the hotel room she had been living in with the father but had nowhere else to live. She sought help from her parents (H's maternal grandparents). The mother's parents went to Darwin to try to assist the mother. The maternal grandmother says in her affidavit that they were not able to bring the mother and H back to New Zealand as the mother did not have passports for herself and H. The mother may also have been reluctant to move back to New Zealand at that time. The mother then decided to relocate to Hobart. In Hobart they would have the benefit of support from the father's mother and stepfather (the paternal grandparents), who lived nearby. The maternal grandfather accompanied the mother and H to Hobart.

14 It seems the father and the mother resolved the issues that had led to this separation. The father joined the mother and H in Hobart a month or so later.

15 Following the relocation to Tasmania there was further conflict and family violence. On numerous occasions the police were involved. The Tasmania Child Protection Service (TCPS) had an extensive involvement with the family: the file which was in evidence before us runs to several hundred pages. Harm assessments by Child Protection Services in 2016 and in mid-2017 expressed significant concern about H's welfare, placing the family as “about an 8” on a scale of 0 to 10.

16 The mother's mental health remained frail, and she continued to drink heavily. This significantly affected her parenting capacity. She received some support to manage these issues from public and social sector agencies, including counselling and parenting support. She also received considerable support from the paternal grandparents, who had a close and loving relationship with H and were very supportive of the father and the mother.

17 On 16 June 2016, following an incident on the night of 15 June, a police family violence order was issued against the father. (It appears a similar order had also been issued on 8 June 2016, following another incident.) The father returned to the house on the afternoon of 16 June and verbally abused the mother. Following this further incident, a family violence order was...