Adams v Hood [2019] NZFC 6621

Published 15 November 2019

Relocation — return of children — domestic violence — physical abuse — acquiescence — grave risk of harm — Australia — Hague Convention on the Civil Aspects of International Child Abduction, art 13 — Care of Children Act 2004, ss 95, 105, 106 & 107 — Chief Executive of the Department for Courts v Phelps [2000] 1 NZLR 168 (CA) — A v Central Authority for New Zealand [1996] 2 NZLR 517 — Re A (a minor) (abduction) [1988] 1 FLR 365 — Clark v Carson [1996] 1 NZLR 346 — Coates v Bowden (2007) 26 FRNZ 2010 — KS v LS [2003] NZFLR 817 — P v Secretary for Justice [2007] 1 NZLR 40 — H v H (1995) 13 FRNZ 498 — Re K (Abduction: Consent) [1997] 2 FLR 212 — KMA v Secretary for Justice [2007] NZFLR 891 (CA) — Secretary for Justice v HJ [2007] 2 NZLR 289 — Smith v Adam [2007] NZLR 447 — In re D (Abduction)(Rights of Custody) 1 All ER 783 (HL) — Re H and Others (Minors)(Abudction: Acquiescence) [1997] All ER 225 (HL) — S v P [2018] NZHC 2646 — JHL v Secretary for Justice [2008] NZFLR 54 (HC) — Basingstoke v Groot [2007] NZFLR 363. The applicant father sought the return of the parties' three children to Australia after the respondent mother brought them to New Zealand. The mother moved to New Zealand after suffering physical abuse at the hands of the father, which required the police to be called and resulted in a protection order. 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. These requirements were satisfied in relation to all of the children. The mother opposed the children's return on the basis of two defences under s 106. Firstly, either that the father had consented to, or later acquiesced in, the removal of the children. Secondly, there was a grave risk that the children's return would expose them to harm. As the opposing party the onus was on the mother to prove the defences. She provided email and text exchanges as evidence that the father had consented to the children leaving and acquiesced to them staying in New Zealand, but the Judge found the information fell well short of reaching the necessary threshold. In terms of the grave risk defence, only the mother had suffered physical violence at the hands of the father, he had not hurt the children. There was no evidence that seeing their mother abused had psychologically harmed them either. Now that the parties were separated the Judge did not believe the children were at risk. The mother submitted she would be unemployed in Australia and had no family or support but the Judge noted she could apply for social welfare. The father also said he would provide for the mother and children if they returned. The Judge noted that financial abuse and control is a common tool used by an abuser but did not think that would happen in this case. The application for an order for return of the children to Australia was granted. Judgment Date: 27 August 2019. * * * Note: names have been changed to comply with legal requirements. * * *