Sparrow v Waldergrave [2019] NZFC 6196

Published 07 November 2019

Application for return of children — consent to removal — grave risk — physical or psychological harm — intolerable situation — Care of Children Act 2004, ss 105 & 106 — Hague Convention on the Civil Aspects of International Child Abduction 1980 — Basingstoke v Groot [2007] NZFLR 363 — KMA v Secretory for Justice [2007] NZFLR 891 — H v R [2017] NZHC 2617 — Qamus v Rowley [2017] NZHC 2260 — Mikova v Tova [2016] NZHC 1983. The applicant father sought the return of the parties' two children to Australia after the mother moved with them to New Zealand in late 2018. 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 children are in New Zealand; (b) the children were removed from another Contracting State in breach of the 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 children were habitually resident in the Contracting State immediately before removal. The respondent accepted that all the requirements in s 105 were made out, but submitted defences were available under s 106 of the Act. Firstly that the father consented to the move to New Zealand and secondly that the return of the children to New Zealand would place them at grave risk of harm or being placed in an intolerable situation. There was no evidence that proved the applicant had consented to the move. There were some discussions about moving but the respondent fled Australia (following an assault by the father) in furtive circumstances that suggested she knew the father did not consent. The mother submitted the father was physically and psychologically abusive. She said he physically abused her in front of the children and would yell and swear in front of them. They father denied ever being abusive in front of the children but admitted he assaulted the mother. The Judge referred to case law which stated the grave risk defence has a high threshold. The Judge did not consider that threshold was met in these circumstances. The parties would be living in separate residences, they would have recourse to Australian courts should any issues arise and the father had taken a "Changing Tracks" course aimed at preventing violent behaviour. As to risking the children being placed in an intolerable situation, the mother submitted she could not afford to care for the children in Australia. The Judge did not accept this after reviewing evidence that she would be eligible for WINZ payments and have some family support. As the requirements in s 105 were made out and no defences were successfully raised under s 106, the Judge made an order that the children be returned to Australia. Judgment Date: 14 August 2019. * * * Note: names have been changed to comply with legal requirements. * * *