Kiwi children to return to Aust despite protection order
NZPA | Wednesday, 6 June 2007
A New Zealand mother whose two children have been ordered to return to
Australia, where their father lives, has lost an appeal against the ruling,
even though the father has protection order issued against him.
The Court of Appeal judgement released yesterday upheld rulings made by the
Family Court and the High Court that the two young children must be returned
to Australia pending a custody battle.
Both parents are New Zealanders. Their older son was born here and the
family moved to Australia the following year, where their daughter was born.
After they separated early last year, the mother took the children to New
Zealand without the father's knowledge, and obtained a protection order
against him for herself and the children.
The children were subsequently ordered to return to Australia by the Family
Court and the High Court under the Hague Convention, which says children
must be returned to their normal residence when court action over custody is
pending.
The mother appealed the High Court ruling in the Court of Appeal on the
grounds that the children should have had a lawyer and there were errors in
court proceedings.
The Court of Appeal dismissed her appeal.
It said it was a complication that she had taken out a protection order
against the father in New Zealand, which could be extended to Australia,
because it would mean the children could not live with their father.
However, that and other factors including possible financial difficulties in
Australia did not meet the high threshold of establishing grave risk of an
intolerable situation, which meant the court could not rule against the
Hague convention guidelines, the Appeal Court found.
It said separation causing psychological harm was not an issue because it
was most likely that the mother would return to Australia with the children.
The court said it was likely she could obtain financial support in Australia
if it was necessary, although she did not qualify for a parenting benefit.
It also said her initial stay in Australia may be brief.
"If adequate financial assistance is not available, we hope that the
Australian courts will facilitate an urgent hearing... or allow the
applicant and the children to return to New Zealand on the applicant's
undertaking to return with them when required."
The mother had two older children that she could not take out of New Zealand
because of a court order granted to their father, who is currently serving a
jail sentence.
However, her parents lived in New Zealand and it seemed likely, despite some
health problems, that they could look after the older children in the short
term at least while she returned to Australia with the younger children, the
court said.
The court said it agreed with the High Court decision and that a lawyer for
the children had not been necessary.