Robinson v Robinson

• Jurisdiction: New Zealand
• Judge: Gordon J
• Judgment Date: 22 July 2020
• Neutral Citation: [2020] NZHC 1765
• Court: High Court
• Docket Number: CIV-2020-404-511
• Date: 22 July 2020

Between

Robinson

Appellant

and

Robinson

Respondent

[2020] NZHC 1765

Gordon J

CIV-2020-404-511

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Family — appeal against a Family Court decision declining an application for an order to return three children abducted from New Zealand to Australia — child objections — grave risk of an intolerable situation — consideration of approach in the United Kingdom to the exercise of discretion — The Hague Convention on the Civil Aspects of Child Abduction — Care of Children Act 2004

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 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:

TABLE OF CONTENTS

Introduction	[1]
Background	[8]
Undertakings by the father	[25]
The Convention, the statutory framework and UNCROC	[27]
Family Court judgment	[40]
Child objection defence	[42]
Consent/acquiescence	[49]
Grave risk defence	[52]
Overall discretion	[54]
Approach on appeal	[56]
No specialist psychologist's report under s 133	[57]
Fresh evidence	[63]
First ground of appeal — child objection defence — s 106(1)(d)	[71]
Legal principles	[82]
Lawyer for the children — 30 September 2019 report regarding M	[88]
General practitioner letter — 25 October 2019 regarding M	[95]
Doctor Farnsworth-Grodd — affidavit 30 October 2019 regarding M	[97]
Lawyer for the children -2 December 2019 report regarding M	[103]
Lawyer for the children — 9 June 2020 report regarding M	[110]
Lawyer for the children — 30 September 2019 report regarding N	[116]
General practitioner letter — 25 October 2019 regarding N	[123]
Dr Farnsworth-Grodd — affidavit 30 October 2019 regarding N	[124]
Lawyer for the children- 2 December 2019 report regarding N	[128]
Lawyer for the children — 9 June 2020 report regarding N	[130]
Lawyer for the children — 30 September 2019 report regarding S	[134]
Lawyer for the children — 2 December 2019 report regarding S	[135]
Lawyer for the children — 9 June 2020 report regarding S	[136]
Further background — H and A	[138]
Discussion	[148]
Second ground of appeal — consent/acquiescence defence — s 106(1)(b)(ii)	[198]
Legal principles	[202]
Discussion	[208]
Cross appeal — grave risk defence — s 106(1)(c)	[233]
Legal principles	[242]
Discussion	[247]
Third ground of appeal — failure to properly exercise discretion under s 106(1)	[280]
Legal principles	[286]
Discussion	[292]
Summary of conclusions	[300]
Result	[301]
Costs	[302]

Introduction

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

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

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

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

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

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

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

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

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

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

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

Background

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

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

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

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

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

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

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

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

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

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

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

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

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

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

15 On 19 July 2019, the mother's Australian solicitor sent a letter by email advising the father that the mother considered the marriage to be at an end and that neither she nor the three younger children would be returning to Australia. The father says he read the letter on 20 July 2019, when he searched his emails, after hearing from the oldest son, I, who had received a message from his mother that day. The message said she did not intend to return to Australia with the three younger children as previously arranged.

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

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

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

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

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

21 The case for the mother is that the family's life in Australia was marred by physical violence, emotional harm and extremely controlling behaviour by the father. For example, no one was allowed to have their own general practitioner unless the father requested it. He was in charge of all the finances and spending. Any questions about that resulted in physical and...