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Children – Hague child abduction convention – return order set aside

In Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 (25 March 2020), the Full Court (Ryan, Aldridge & Watts JJ) allowed the mother’s appeal from Ainslie-Wallace J’s order under the Family Law (Child Abduction) Regulations 1986 (Cth) to return to New Zealand with her two children.

The parties cohabited in NZ where the father had many convictions for assault and other offences for which he was imprisoned. He was violent towards the mother, was imprisoned again for assault and in 2012 for contravening a domestic violence order. Their first child was born in 2016 in Australia. The father was deported in 2017 to NZ where their second child was born. In 2019 the mother was granted orders for the children to live with her, whereupon she and the children returned to Australia.

At the hearing of the father’s application for a return order, Ainslie-Wallace J rejected the mother’s case that there was a grave risk that a return would expose the children to harm or place them in an intolerable situation pursuant to reg.16(3)(b).

On appeal the Full Court set aside the return order. Ryan and Aldridge JJ (at [61]) adopted the dissenting judgment of Hale LJ in TB v JB (Abduction: grave risk of harm) [2001] 2 FLR 515:

“44. (…) Primary carers who have fled from abuse and maltreatment should not be expected to go back to it…We are now more conscious of the effects of such treatment, not only on the immediate victims but also on the children who witness it (…)

57. But it cannot be the policy of the Convention that children should be returned to a country where…they are at grave risk of harm, unless they can be adequately protected from that harm. Usually, of course, it is reasonable to expect that the home country will be able to provide such protection. (…)

59. …[But it] would require more than a simple protection order in New Zealand to guard the children against the risks involved here…”

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

This story was originally published in Proctor June 2020.

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