Holmes v Carlson [2019] NZFC 2180

Published 21 December 2020

Application for return of child to Australia — wrongfully removed or retained — grave risk of harm if returned — intolerable situation — child objection defence — domestic violence — protection order — alleged drug use — welfare and best interests of child — Care of Children Act 2004, ss 4, 102-104, 105 & 106 — Hague Convention on Civil Aspects of International Child Abduction, art 1 — Basingstoke v Groot [2007] NZFLR 363 — HJ v Secretary for Justice [2007] NZFLR 195 — Damiano v Damiano [1993] NZFLR 549 — A v A (1996) 14 FRNZ 348 — Clarke v Carson (1995) 13 FRNZ 662; [1995] NZFLR 956 — Armstrong v Evans (2000) 19 FRNZ 609; [2000] NZFLR 984 — KS v LS [2003] 3 NZLR 837; (2003) 22 FRNZ 716 — HJ v Secretary for Justice [2006] NZFLR 1005 — C v C [1989] 1 All ER 465 — Clark v Carson (1995) 13 FRNZ 662 — Secretary for Justice v HJ [2007] 2 NZLR 289; [2007] NZSC 93; [2007] NZFLR 195 — COL v RR [2018] NZHC 2902 [8 November 2018] — Azoulay v Nelson [2017] NZFC 7713 — Pollastro v Pollastro [1999] 171 DLR (4th) 32 — B v B [1994] NZFLR 497 — Re D (A Child), (Abduction: Rights of Custody) [2006] 3 WLR 989 — W v N [2006] NZFLR 793 — B v C [2002] NZFLR 433 — Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 — S v S [1999] NZFLR 625 — White v Northumberland [2006] NZFLR 1105 — W v N (Child Abduction) [2006] NZFLR 793 — Kruger v Winkel [2017] NZFC 6923. The applicant father sought the return of the parties' son to Australia after the respondent mother moved to New Zealand with the child as well as two other children born to her more recent ex-partner. She moved with the help of Australian authorities to escape the domestic violence she suffered at the hands of the applicant and her ex-partner. Under the Care of Children Act (the Act), which codified the Hague Convention on the Civil Aspects of International Child Abduction (the Convention), an application for return will be successful if it can be shown that: (a) the child is in New Zealand; (b) the child was removed from another Contracting State in breach of an applicant’s rights of custody; (c) at the time of removal those rights were being exercised (or would have been but for the removal) and; (d) the child was habitually resident in the Contracting State immediately before removal. The mother conceded all of the requirements were made out but raised two defences under s 106. First, that to order return would place the child at grave risk of harm or otherwise in an intolerable situation. The Judge rejected this defence as the father had not physically harmed the child, and while the child may be uncomfortable in his care it was not intolerable. The second defence was the child objection defence. Determination of this defence is a four-step process: (a) Does the child object to return? If so; (b) Has the child attained an age and degree of maturity at which it is appropriate to give weight to the child’s views? If so; (c) What weight should be given to the child’s views? And; (d) How should the residual statutory discretion be exercised? The child strongly objected to returning. He did not like being in his father's care, was happy in New Zealand and had been in the primary care of his mother, living with his two younger siblings who he emphatically did not want to leave. Based on the evidence of experts, the Judge found the child was at an age and maturity where it was appropriate to give his views weight. Further, they could be given significant weight. The Judge decided to exercise the residual discretion not to order a return. It was in the welfare and best interests of the child to remain in New Zealand. Judgment Date: 4 April 2019. * * * Note: names have been changed to comply with legal requirements. * * *