Azoulay v Nelson  NZFC 7713
Published 25 May 2018
Application to return children to Australia — Hague Convention — whether a grave risk existed — Care of Children Act 2004, ss 105 & 106 — White v Northumberland (2008] NZFLJ 84.
The court was asked to make an order returning two children to Australia. The children had been removed to New Zealand by their mother to visit family and were never returned. The mother had sought and obtained a temporary protection order against the father and interim parenting orders giving her day to day care of the children. An order had also been obtained preventing the removal of the children from New Zealand. The father denied that there was any risk of harm to the children in returning them to Australia, and was concerned that the mother would alienate the children from him.
The mother opposed the making of a Hague Convention order as she was concerned that the father was physically and psychologically abusive, particularly in respect of their eldest child. The mother argued that she had a defence that returning the children would expose them to a grave risk that they would be subjected to physical and psychological abuse.
A s 133 report noted that the eldest child had repeatedly and adamantly stated that she did not want to return to Australia and had described experiences that were consistent with those identified by her mother in her own words. The report writer considered that returning the eldest child to Australia would have a very significant negative effect on her.
The court found that it would be detrimental to return the eldest child to Australia and that it would expose her to grave risks to her welfare and best interests, but that the interests of both children must be considered together. The court found that the mother's lack of employment in Australia, the ongoing conflict between the parties, and the likely impact on the children meant that ordering that the children be returned would place them in an intolerable situation. The court found that grounds to refuse the order were established and the application was dismissed.
Judgment Date: 27 September 2017.
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