Zamani v Zamani [2020] NZFC 1094

Published 30 October 2020

Application for return of children — acquiesced in retention of children — consent — children object to return — placement of children in intolerable situation — Australia — grave risk of harm — admissibility of evidence — GP affidavit — mental health issues — physical abuse — child abuse — family violence — welfare and best interests of children — judicial discretion — Hague Convention on the Civil Aspects of International Child Abduction — Care of Children Act 2004, ss 4, 105, 106 & 133 — Evidence Act 2006 — Family Court Act 1980, s 12 — Basingstoke v Groot (2007) NZFLR 363 — Re F (a minor) (child abduction) (1992) 1 FLR 548 — Jeffries v Jeffries (Unreported) Family Court, Dunedin, FP012/228/02, O'Dwyer FCJ, 24 February 2003 — KMA v The Secretary for Justice [2007] NZFLR 891 — RE K (Abduction: Consent) [1997] 2 FLR 212. The applicant father sought the return of the parties' three youngest children after the respondent mother unilaterally moved them to New Zealand. The children were four, 12 and 14. 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 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 children were habitually resident in the Contracting State immediately before removal. It was agreed that all of these requirements were made out; however, the respondent raised three defences under s 106 of the Act. Firstly, that the children objected to returning to Australia. Success of this defence depends on 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? This defence was only relevant to the two older children. The Judge was satisfied they were both mature beyond their age. They did not want to return to Australia due to their father's controlling behaviour, emotional abuse and alleged physical abuse. They were thriving in New Zealand with a much larger network of family and support. There was no evidence they were under any undue influence to refuse to return to Australia. This defence was successfully made out in respect of the two older children. The second defence was that the father acquiesced to the children remaining in New Zealand. Based on the respondent's affidavit, evidence of witnesses and a letter written by the respondent's lawyer, the Judge was satisfied the applicant had consented to the children remaining in New Zealand, although he shortly revoked that consent. It is well established in case law that acquiescence or consent, once given, cannot be withdrawn. The mother had also relied on the consent by enrolling the children in school in New Zealand. Thirdly, the mother raised the defence that the children would be at risk of grave harm if forced to return. This is a very high threshold that was not met. There was no evidence that the children suffered grave physical, mental or emotional harm. In assessing whether to exercise the judicial discretion to order the children's return, the Judge was satisfied this was a situation where an order should not be made. The respondent had successfully made out two defences, and the father's application was declined. Judgment Date: 25 February 2020. * * * Note: names have been changed to comply with legal requirements. * * *