KN v CN [2016] NZHC 2049 (31 August 2016)

Last Updated: 11 October 2016

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1557 [2016] NZHC 2049

UNDER	the Care of Children Act 2004
IN THE MATTER OF	an appeal against a decision of Judge I M Malosi made in the Manukau Family Court on 14 June 2016
BETWEEN	KN Appellant
AND	CN Respondent

Hearing:	23 August 2016
Appearances:	A Ashmore and M Fairley for the Appellant A J Cooke for the Respondent J Robertson, lawyer for child
Judgment:	31 August 2016

_{JUDGMENT OF MUIR J}

This judgment was delivered by me on Wednesday 31 August 2016 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ...........................

Solicitors: A Ashmore, Barrister, Auckland

A J Cooke, Barrister, Manukau

J Robertson, Barrister, Newmarket

KN v CN [2016] NZHC 2049 [31 August 2016]

Introduction

[1] The appellant (KN) appeals from the Family Court’s decision under s 105(2) of the Care of Children Act 2004 (COCA) ordering the return of two children to Australia.¹ The case is therefore one under what is commonly called the Hague Convention, the relevant provisions of which are incorporated into New Zealand domestic law.²

[2] KN, who is the children’s mother, says that the Family Court erred in not finding that she is so compromised psychologically that her return to Australia with the children will leave her so significantly dysfunctional that it creates a grave risk of psychological harm to the children or will otherwise place them in an intolerable situation.

[3] KN says further that such grave risk to the children cannot be ameliorated by their return to the father in the event of dysfunction because there is evidence of sexual abuse of her son (Z) which would need to be fully investigated before such an arrangement could be contemplated.

Background

[4] KN is a New Zealand citizen. On 7 November 2009 she married CN who is an Australian citizen. They lived together in Sippy Downs on the Sunshine Coast and subsequently had two children, Z born 20 November 2010 and a daughter K born 21 September 2012.

[5] On 2 October 2015 KN travelled to New Zealand with the children. The visit was ostensibly so KN could support her sister who was undergoing medical tests in relation to possible cancer. The Family Court found, however, that at the time of her departure, she planned to remain in New Zealand after arrival. That finding is not challenged on appeal and was one which, on the evidence, was, in any event, clearly

_{available to the Family Court.}

¹ _{CMN v KN [2016] NZFC 4633.}

2. The Hague Convention on the Civil Aspects of International Child Abduction 1980 as incorporated into New Zealand domestic law by ss 94 – 124 of the Care of Children Act 2004.

[6] From the time of their arrival KN and the children have lived with KN’s

mother and her partner on a rural property south of Auckland.

[7] KN says that her decision to leave the marriage and bring the children to New Zealand was precipitated by a history of forced sexual relations with her husband including rape. In her affidavit she claims that she was in fact raped on seven occasions although that number is said to be only two in the report made to psychiatrist Dr K Armstrong.

[8] The District Court judgment fully sets out KN’s extensive claims of inappropriate sexual activity or demands by CN, including his having sex with her in the children’s bathroom when they were next door and in the garage when Z walked in on them. She says that the sex was often “rough” and that her vagina was often torn and that CN typically refused requests to stop.

[9] All allegations of non-consensual sexual activity are denied by CN. He says that he finds the allegations offensive.

[10] KN also alleges that she was subject to physical abuse and deposes to one occasion on which, following what was clearly very provocative behaviour on her own part,³ CN throttled her around the neck lifting her off the ground. She also makes a number of allegations of psychological abuse including that CN called her, among other things, a “drama queen”, a “cunt” and “crazy”.

[11] In addition, KN alleges premature sexualisation of Z by CN and/or inappropriate sexual conduct in his presence and/or sexual abuse of him. She deposes to disclosures made by Z which suggest CN has been watching pornography (or has shown Z pornography) and that Z may have observed CN masturbating to it.

[12] Again such allegations are denied by CN.

[13] I do not intend to rehearse fully all of the particulars of KN’s claims against

_{her husband, nor the detail of his denials. Such is comprehensively set out in the}

³ As a result of perceived unresponsiveness to her requests KN admits that she threw a bowl of

warm dog food in CN’s face.

Family Court’s judgment. As Mr Ashmore responsibly concedes, an application under s 105(2) is not the appropriate vehicle for a Court to make any findings in respect of allegations of violence or inappropriate sexual behaviour. To that extent the contested evidence of violence is relevant only to the extent KN claims to be psychologically compromised. Likewise, the contested evidence of inappropriate sexual behaviour (in the presence of or involving Z) is relevant only to the proposition that, pending proper investigation, it would, if KN became incapacitated, be inappropriate to return the children to CN and that child protection agencies would therefore necessarily have to arrange third party care.

Application to adduce further evidence

[14] KN applies to adduce further evidence from clinical psychologist Ms S Mafi and from psychiatrist Dr C Armstrong. Both filed affidavits.

[15] Ms Mafi has a specialty in the psychological assessment and counselling of children and has undertaken a course of eight sessions with Z between 31 March

2016 and 18 May 2016. Her affidavit reports on each of those sessions. Several occurred prior to the hearing before the Family Court and there is no explanation as to why a report in respect of them could not have been available for the Family Court hearing. By agreement between the parties Ms Mafi’s evidence is admitted but only in respect of those sessions referred to in paragraphs 21 – 23 of her report which post-date the Family Court hearing.

[16] Paragraph 21 relates to a session on 11 May 2016. In the affidavit to which her report is annexed Ms Mafi refers to there having been a “disclosure of sexual abuse” at that session.

[17] Paragraph 21 of the report is in terms:

In another session I asked [Z] if there was anything he wanted to tell me about his Dad. He said there was – that his Dad had rubbed his willy on his [Z’s] chest. I asked where this happened and [Z] replied they were in Dad’s bed together. I asked what happened next and [Z] said his Dad told him to get out of the room. Asked how he had felt, he replied “sad like on the picture cards we had looked at the week before”.

(emphasis added)

[18] I do not accept Ms Mafi’s characterisation of this incident as necessarily involving sexual abuse. Such appears to be inconsistent with the instruction to “get out of the room” and there may be an innocent explanation for what occurred, if in fact it did. That will need to be tested in an appropriate forum in due course. I am also mindful of the influences on Z by his maternal family to make adverse statements about his father which Ms Mafi herself acknowledges, albeit she says the responses were “not in response to direct questioning and were not made easily”.

[19] In paragraph 22 of her report she refers to discussion at her next session

about the subject of “secrets” during which she says Z became anxious.

[20] At the following session, described in paragraph 23 of her report, she says that Z was anxious and clingy and asked if we “can talk about secrets”. He then said “Dad shows rude stuff on his phone”, rude stuff being “nude” people. He then said “Dad looks at his phone in the shower” and that he “goes like this with his willy”, rubbing his hand up and down his chest.

[21] I note that when KN saw Dr Armstrong on 11 January 2016 she reported that Z had told her that he had seen “rude ladies on dad’s phone” and that “she felt that indicated that he may have seen CN masturbating”. I am cautious therefore about the apparent revelations by Z about masturbation some four months later given the opportunity for suggestibility in the interim.

[22] However, again it is not necessary for me to comment on the veracity of these allegations. To the extent truthful, there may again be an innocent explanation in the nature of inadvertent entry into the bathroom by Z at an inappropriate time. But, as Mr Ashmore concedes, the evidence is only relevant to the extent that it corroborates the disclosures said to have been made by Z to KN and which were before the Family Court. And, as I have said, that evidence is, in turn, only relevant to the extent that it may be inappropriate (if KN is unable to function in Australia) to return the children to their father until such time as these allegations have been appropriately investigated by relevant authorities.

[23] Dr Armstrong’s additional evidence is by way of an update to his earlier report. He records meeting with KN on 4 July. That was approximately two weeks after delivery of the Family Court’s decision. He says that KN was unable even to imagine what it would be like to return to the Sunshine Coast and says that this is entirely consistent with the Post-Traumatic Distress Disorder symptoms he had previously diagnosed. He also says that she expressed suicidal thoughts in relation to the prospect of returning to Australia. Significantly, however, he does not make his own diagnosis of suicidal tendency. In his previous report, as in that of KN’s GP, no such ideation was identified and I have concerns, as I subsequently discuss, about suicidal thoughts being raised by KN at the time she did. Mr Ashmore again responsibly disclaims suicidality as a relevant factor in the appeal.

[24] Dr Armstrong further advises that she experiences “frequent flashbacks of incidents in which she was strangled by her ex-husband”. Only one such incident is recorded in the affidavit evidence and again this indicates to me (as with the number of alleged incidents of rape) some looseness in KN’s allegations.

[25] Dr Armstrong’s own professional views are expressed at paragraphs 15 – 17 of the further affidavit in terms:

15. On mental examination [KN] presented as tearful, anxious, easily startled and low in mood. Her affect was anxious and consistent with her report of lower mood. Her form of thought was normal, however thought content was pre-occupied with difficulties in her life and concerns about her ability to cope if returned to Australia.

16. It is my impression that [KN] has undergone recurrent stress due to the nature of her husband in the current proceedings and the stress her son has been experiencing. She has in fact deteriorated despite the medication psychological treatment reflecting in the nature of the ongoing stress she faces.

17. I would have grave concerns at her ability to function as a parent upon return to Australia and by extension therefore the ability of the current care arrangement with her as primary caregiver continuing should return be directed.

[26] By consent Dr Armstrong’s updating affidavit is admitted. I do, however,

make the following observations:

(a) Dr Armstrong himself identifies that, in part, the psychological difficulties KN is experiencing are the result of her reaction to the Hague Convention proceedings. It is inevitable that having received the Family Court’s decision shortly before the further interview with him KN would have been in an elevated state of anxiety.

(b) Dr Armstrong’s adoption of the word “grave” in paragraph 17 of his report invokes the specific measure of risk to which s 106(1)(c) of the COCA is directed. That is unlikely to be coincidental. Nor do I find it particularly helpful as assessment of grave risk to the children is ultimately a matter for the Court.

Relevant statutory provisions

[27] These are contained in s 106 of the COCA which provides:

106 Grounds for refusal of order for return of child

(1) If an application under section 105(1) is made to a Court in relation to the removal of a child from a Contracting State to New Zealand, the Court may refuse to make an order under section [105(2)] for the return of the child if any person who opposes the making of the order establishes to the satisfaction of the Court—

(a) that the application was made more than 1 year after the removal of the child, and the child is now settled in his or her new environment; or

(b) that the person by whom or on whose behalf the application is made—

(i) was not actually exercising custody rights in respect of the child at the time of the removal, unless that person establishes to the satisfaction of the Court that those custody rights would have been exercised if the child had not been removed; or

(ii) consented to, or later acquiesced in, the removal; or

(c) that there is a grave risk that the child's return—

(i) would expose the child to physical or psychological harm; or

(ii) would otherwise place the child in an intolerable situation; or

(d) that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate [, in addition to taking them into account in accordance with section 6(2)(b), also] to give weight to the child's views; or

(e) that the return of the child is not permitted by the fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.

(2) In determining whether subsection (1)(e) applies in respect of an application made under section 105(1) in respect of a child, the Court may consider, among other things,—

(a) whether the return of the child would be inconsistent with any rights that the child, or any other person, has under the law of New Zealand relating to [refugees or protected persons]:

(b) whether the return of the child would be likely to result in discrimination against the child or any other person on any of the grounds on which discrimination is not permitted by the United Nations International Covenants on Human Rights.

(3) On hearing an application made under section 105(1) in respect of a child, a Court must not refuse to make an order under section 105(2) in respect of the child just because there is in force or enforceable in New Zealand an order about the role of providing day-to-day care for that child, but the Court may have regard to the reasons for the making of that order.

[28] In the present case the sole issue before the Family Court was whether there was a grave risk that the children’s return would expose them to physical or psychological harm or would otherwise place them in an intolerable situation. Moreover, Mr Ashmore accepts that because of the presence of the words “or otherwise” in s 106(1)(c)(ii) the physical or psychological harm referred to in s 106(1)(c)(i) must be of a character which would place the child in an intolerable situation.

Approach to appeal

[29] Counsel are agreed that:

(a) An appeal from a decision under s 106(1)(c) is a general appeal governed by the principles in Austin, Nichols & Co Inc v Stichting Lodestar.⁴ Only in the event that the defence in that section had been made out but the Family Court had exercised its discretion not to return the children would the principles in May v May apply.⁵

(b) In the words of Baroness Hale In Re D(A Child) (Abduction: Rights of

Custody) that:⁶

It is inconceivable that a court which reached the conclusion that there was a grave risk that the child’s return would expose him to visible harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate.

[30] I am not therefore required to consider the discretionary nature of the power under s 106 and proceed to deal with the appeal on Austin, Nichols principles. To that extent the Court is to form its own opinion on the issues raised by the appeal. Nevertheless the onus is on KN to show the judgment under appeal is wrong. Despite the fact that the decision appealed from is that of a specialist court no particular deference is required to it. However, factual findings by the trial judge

are, in the words of Heath J in Henderson v Morgan, entitled to respect.⁷

Judicial interpretation of the “grave risk” defence

[31] The ambit of the “grave risk” defence was thoroughly examined in the 2006

Court of Appeal decision of HJ v Secretary for Justice.⁸ It is authority for the proposition that no gloss should be put on the words of the legislation and nor should any of the defences identified be read down in such a way as to render them nugatory. As the Court said at [32]:

... We recognise that the integrity of the Convention and its underlying policies may (and usually will) be important considerations when a discretionary defence is invoked. As well the s 106 exemptions are defined so narrowly that there are comparatively few cases in which they apply. To

⁴ _{Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.}

⁵ _{May v May [1986] 1 FLR 325 (CA).}

⁶ _{In Re D (A Child) (Abduction: Rights of Custody) [2006] 3 WLR 989 at 1008.}

⁷ _{Henderson v Morgan [2013] NZHC 1010 at [34].}

⁸ HJ v Secretary for Justice [2006] NZCA 400; [2006] NZFLR 1005 (CA).

that extent we agree with KS v LS. But there is no requirement to approach in a presumptive way the interpretative, fact finding and evaluative exercises involved when one or more of the exceptions is invoked, cf DP v The Commonwealth Central Authority [2001] HCA 39; (2001) 180 ALR 402. So to that extent we agree with El Sayed.⁹

[32] Nevertheless the Court recognised the difficulties faced by any party attempting to rely on the s 106(1)(c) defence. It said at [33]:

The s 106(1)(c) defence is not easy to invoke successfully. This is in part a function of the hurdle provided by the expression “grave risk” and in part because of judicial expectations that, in the normal course of events, the legal systems of other countries will protect children from harm. In this context we think that references by Judge Van Dadelszen to “heavy onus” (and we know that he did not say “heavy onus of proof”) should simply be construed as a statement of the obvious – the defence in question was by its nature difficulty to make out.

[33] That the bar is set so highly is, as Fisher J pointed out in the High Court in S v S for both remedial and normative purposes. Having referred to the Convention premise that the interests of the child are of paramount importance, he stated:¹⁰

... In giving effect to that premise, it will usually be in the interests of particular abducted children that they be returned. That is the Convention acting remedially. But it would be easy to overlook its equally important normative role. There is the future of other children to consider. Their interests will be promoted by demonstrating the potential abductors that there is no future in inter-State abductions. A firm attitude to the return of children, in other words, discourages those parents who might otherwise be tempted to contemplate unilateral removal and as Judge Ryan recently added in Secretary for Justice ex p Speechley v Reti 12/3/99, Judge Ryan, DC Kaikoke FPO27/13/98, at p 8, such an approach also addresses the inhibitions there might otherwise be over allowing children to visit a Convention country on a voluntary basis. In New Zealand’s case a firm implementation of the Convention is an assurance to overseas custodial parents that it is safe to allow their children to come here for access and other temporary purposes.

[34] As the Court of Appeal further observed in HJ, although the section can be invoked where the legal system of the country to which the children would otherwise be returned is unexceptional, the ability of courts in that country to provide such

_{protection is likely to be a highly relevant consideration.}¹¹ _{In the present case KN}

9. This aspect was not challenged in the subsequent Supreme Court Decision Secretary for Justice v HJ [2006] NZSC 97, [2007] NZFLR 195.

¹⁰ S v S (1999) 18 FRNZ 248 (HC). In the Court of Appeal decision in the same case (S v S [1999]

_{3 NZLR 528 (CA)) these comments were not challenged.}

¹¹ HJ v Secretary for Justice, above n 8.

rightly concedes that Australia offers a mature and comprehensive system of protections in which the interests of the child are paramount. It follows from that as Fisher J observed in S v S:¹²

The party resisting return must go further and show why the legal system of the country of habitual residence cannot be entrusted to safeguard the interests of the child pending the outcome of custody and access issues there.

[35] Nevertheless, I accept Mr Ashmore’s submission that the Court cannot by a series of ostensibly sensible presumptions read together effectively make the s 106(c) defence unattainable. Indeed, the New Zealand courts have accepted the grave risk defence in various circumstances.¹³

[36] In Armstrong v Evans, for example, the Family Court upheld the defence where the expert evidence was that if the defendant returned to Australia she could well commit suicide.¹⁴

[37] At [56] Judge Doogue (as she then was) stated:

... The risks are the child may suffer the grief of separation from a severely depressed primary caregiver, the permanent loss of a parent, the complications of a relationship with the one remaining parent who may be seen by him to be in part or whole causative of the suicide, the problems of resolving why the respondent took the action she did if she genuinely cared for him and all the resultant life difficulties that a parent’s suicide leaves for a child or young person.

[38] At [59] she distinguished S v S on the basis that there was:

... no suggestion that the mother might suicide, thus posing grave risk to the psychological wellbeing of the children or placing them in an intolerable situation.

[39] She concluded that the PTSD from which the respondent was suffering (as a result of her exposure to an environment which would more probably than not risk

_{the child’s physical safety) could result in “detrimental psychological sequelae}

¹² _{S v S, above n 10.}

13. See Mok v Cornelisson (2000) 19 FRNZ 598; Armstrong v Evans (2000) 19 FRNZ 609; and in the High Court Coates v Bowden (2007) 26 FRNZ 210.

¹⁴ Armstrong v Evans, above n 13 at [53].

following a parent’s serious psychological impairment or suicide”.¹⁵ She therefore found the defence made out.

[40] In the case under appeal the Judge Malosi distinguished this decision on the basis that it involved a real risk of the mother committing suicide. I accept Mr Ashmore’s submission that the defence is not in its terms limited to cases where suicidality is demonstrated and indeed Judge Doogue herself referred to a decision In Re G (Abduction – psychological harm) where Ewbank J declined to order the return of a child to the USA when the evidence demonstrated that a forced return of the

mother carried with it a likelihood that she might become psychotic.¹⁶ Nevertheless,

short of evidence of suicide risk or psychosis, considerable care must in my view be exercised before finding that a mother’s mental health is such as to expose a child to the grave risk of physical or psychological harm on return, as the evidence on which such a defence is based has the capacity to be self-serving.

[41] In the present case a further issue arises as to whether “self-induced” mental fragility of a parent might inform the analysis of grave risk of psychological harm to the child. In a number of cases¹⁷ it has been held that an abducting parent cannot create a situation of potential psychological harm and then rely on it to prevent the return of the child.

[42] The issue is relevant in the present case because of Dr Armstrong’s evidence that one of the sources of KN’s stress is said to be “CN’s approach to their differences which includes the possible use of the Hague Convention to have the children returned to Australia”.

[43] I am cautious about these authorities, finding myself in essential agreement with Fisher J in S v S where he said that: ¹⁸

Any inclination to penalise parents in that position must give way to the greater imperative of safeguarding the interests of the child.

¹⁵ _{At [68].}

¹⁶ _{In Re G (Abduction – psychological harm) [1995] 1 FLR 64 (EWCA).}

¹⁷ See for example Judge Frater (as she then was) in Clark v Stewart DC Wellington FP085/551/95 at 14; Coates v Bowden [2007] NZHC 559 at 45(c); and C v C (Minor Abduction: rights of custody abroad) [1989] 2 All ER 465 at 471.

¹⁸ S v S, above n 10 at 255.

[44] It cannot ultimately be that there are two classes of children both of whom face grave risk of physical or psychological harm but one of whom is repatriated and the other not simply on account of their parents’ actions. Nevertheless, some wariness is in my view necessary in respect of defences based on psychological fragility, if as Butler-Sloss LJ said in C v C, a “coach and four” is not to be driven

through the Convention.¹⁹

[45] In terms of the meaning to be given to the word intolerable in s 106(1)(c)(ii) I

adopt the following definition by Greig J in H v H:²⁰

Intolerable means that something cannot be tolerated. It is not just disruption or trauma, inconvenience, anger. It is something which must be of some lasting serious nature which cannot be tolerated. Human beings, and particularly children, can adjust and re-adjust to various matters, changes in their lives, death and injury, illness, and other matters.

The Family Court’s decision

[46] After a very comprehensive review of all of the affidavit evidence Judge Malosi made factual findings that KN had the intention of remaining in New Zealand when she let Australia and that CN’s account of the incident in which he allegedly “throttled” KN was “deliberately evasive”. She concluded however that even on the respondent’s best case she was not satisfied that there was a grave risk in terms of s 106(1)(c). Her analysis appears at paragraphs [65] – [71] in terms:

[65] As I interpret the argument advanced on behalf of the Respondent she pins her hopes primarily on the ‘intolerable situation’ ground. She seeks to persuade the Court that the impact upon her mental health if the children have to return to Australia will be devastating for her with a corresponding effect upon them. The two, she argues, are inextricably linked.

[66] Although the Court accepted that argument in Armstrong v Evans that case involved the testing of evidence, in particular the psychological evidence, and a finding that there was a real risk of the mother committing suicide if she were required to return to Australia.

[67] In this case of course the evidence has not been tested, but in any event that is not the scenario according to the Consultant Psychiatrist engaged by the Respondent. He notes that she denied current suicidal thinking, and there was no specific reference to that level of risk in the more recent report from her GP.

¹⁹ _{C v C, above n 17.}

²⁰ H v H (1995) 13 FRNZ 498 (HC).

[68] Section 106(1)(c) sets a high bar, and I have simply not been satisfied that it has been reached. In my view any risk to the children of being exposed to physical or psychological harm, or an intolerable situation is appropriately mitigated by the fact that the marriage is clearly at an end, the Applicant has vacated the family home, and either the parties will reach satisfactory arrangements about the care of the children themselves, or they will seek the assistance of the Australian family justice system to do so.

[69] It is not disputed, nor could it be, that Australia can provide the necessary protections and supports for victims of domestic violence, and that the best interests and welfare of children is the paramount consideration in determining arrangements for children’s care in parenting proceedings.

[70] Whilst Ms Leishman argues that is insufficient to protect these children from the potential physical or psychological harm, or otherwise intolerable situation, the weight of the case law does not support that submission.

[71] I find that despite the Respondent’s family living in New Zealand, she will not be left without appropriate supports if she returns to Australia. Her mother has already shown how far she is prepared to go by giving up her job to be available to her daughter and grandchildren. That of course is highly commendable.

(Footnotes omitted)

Appellant’s case on appeal

[47] Mr Ashmore submits that the decision of Judge Malosi was wrong because:

(a) Although acknowledging that KN’s argument was in terms that the effect on her of ordering a return of the children would be “devastating” with corresponding effects on the children, the Judge had, by virtue of the way she distinguished Armstrong v Evans, sought to “infer” that in the absence of evidence of potential suicide the defence could not succeed.

(b) That, he says “palpably sets the bar too high”.

(c) The mitigating factors which the Court recognises in [68] with regard to “any” residual risk (that the marriage is at an end with CN having vacated the family home to which she can return, and the ability of the Australian family justice system to make appropriate orders in the absence of agreement between the parties) are irrelevant in that the

“intolerable” circumstance of KN ceasing to be able to cope derives from the act of returning to Australia itself (being the locus of her alleged abuse) and the absence of structural supports there.

(d) The Judge’s finding at [69] that the Australian Justice system can provide the necessary protections against domestic violence and operates on a basis focused on the welfare and best interests of the child is again irrelevant because the defence case is not that KN will be exposed to domestic violence on her return, but that she simply will not be able to cope because of the background allegations and absence of support.

(e) If in [71] the Judge was inferring that KN’s mother would return with her to Australia there was “absolutely nothing in the evidence to support that proposition”.

[48] Responsibly, Mr Ashmore recognises that the test of grave risk must apply to the children, not KN, and the effects on her mental health of a return of the children to Australia are only relevant to the extent they impact on the children. Nevertheless, he effectively invites the conclusion that KN’s mental health is so fragile that the almost inevitable consequence of a return will be complete dysfunction which, in the context of unresolved claims of sexual abuse of Z will, with a similar level of inevitability, mean that third party care will be necessary. Certainly he says there is a grave risk this will occur which the Family Court’s judgment was wrong in not recognising.

[49] In support of that submission Mr Ashmore refers to both the evidence before the Family Court and Dr Armstrong’s updated affidavit. In particular he relies on the following:

(a) KN’s description of herself as:

“crippled by fear and remembering violent incidents that have occurred and that I cannot undertake simple day to day tasks such as grocery shopping”.

(b) Reference by maternal grandmother’s partner Mr M that KN has panic

attacks and that he has also observed her at times:

“standing and staring almost in a tranced state”.

(c) The maternal mother’s description of her daughter on arrival in New

Zealand as:

“tearful, vacant often, and unable to complete normal functions like preparing the children’s meal or lunch boxes for Play Centre”.

(d) The evidence of Ms M who is president of the Play Centre which the children attend in terms that she saw KN:

“biting her nails and rubbing her hands together. She often looked at the floor when we were talking and would struggle to maintain eye contact. She would look around quickly as if she was expecting something to happen. She spoke very quietly and struggled to even correct me when I initially pronounced [daughter’s] name wrong”.

(e) Dr Armstrong’s report in February 2016 describing her as:

“struggling to function in day to day life”,

as having:

“panic attacks which are periods of intense anxiety relating to her thinking about the future or remembering previous traumatic events within her relationship with her husband”

and that:

“she presented as a very tearful woman whose appearance was consistent with her known age. She was alert in orienting, co-operative. She was pre- occupied with the details of her relationship with CN and the current situation for herself and her children”.

(f) Dr Armstrong’s conclusion that although he found no “suicidality currently” there were:

Prominent symptoms of re-experiencing of traumatic events triggered by day to day occurrences, difficulty with day to day functioning and low mood. Poor sleep and poor appetite.

(g) His conclusion that:

Her post traumatic disorder symptoms amount to a diagnosis of PTSD with significant impact on her day to day function which, however, was gradually improving given the support of her mother and some distance from the situation.

(h) Dr Armstrong’s updated evidence in the terms previously set out.

Analysis

[50] Consideration of a defence such as that raised by the appellant will always place the Court in an unenviable situation. It is necessarily required to make a prospective analysis of risk when often, as in this case, the evidence is untested. Moreover, to the extent such defence is based on extreme emotional fragility it has its origins in the manner in which a party presents both to family and health professionals. As a result the Court must be alert to the ability of such party to magnify their problems for the purposes of providing ballast to their defence.

[51] KN does not dispute that the language of s 106(1)(c) is expressed in terms which are “forceful and vigorous”.²¹ The test which I must apply is not one based on a “best interests” analysis. Any such assessment must await a substantive hearing whether in New Zealand or Australia. There is a particularly heavy burden, derived from the references to both “grave risk” and an “intolerable situation” on any party seeking to invoke the defence. I accept judicial observations to the effect that the Court should be hesitant before granting what is in effect an exemption from the otherwise mandated position under the Convention.²²

[52] I conclude that the appellant has not demonstrated that the decision of the Family Court was wrong. Implicit in that finding is my conclusion that she has not established that there is a grave risk of psychological harm to the children (at a level which is intolerable) from an order requiring their return. I do not address the risk of

_{physical harm because no such harm is contended for. The order made by the}

²¹ _{Damiano v Damiano (1993) NZFLR 548 at 553.}

²² Evans v Evans [1989] FCR 153.

Family Court was for the return of the children to Queensland, Australia. It was not, nor could it be, an order for the return of children to CN’s care. To the extent there are unresolved allegations involving potential physical and/or sexual abuse of Z this Court can rely on the protections offered by the Australian justice system pending proper investigation.

[53] My conclusion that there is not a grave risk of the children being exposed to psychological harm at a level creating “an intolerable situation” is based on a number of inter-related reasons. These are as follows:

(a) The appellant is a woman who, at least until the last year, has demonstrated a high level of competence. She holds a Masters degree in communication which she obtained in Sydney. She has worked in the office of the Ombudsman and for the six years prior to meeting her husband held a senior position as a communications manager for a large healthcare provider in Australia. In addition to raising two young children she has, throughout the marriage, managed the couple’s financial affairs including those of CN’s pest destruction business. In saying all of that I accept, of course, that competent people can, as a result of circumstances, lose their ability to function adequately.

(b) At no stage prior to her departure from Australia did she seek psychological assistance, and the only complaint made to local authorities was by her mother following disclosure to her of alleged assault following what I refer to as the dog food incident.²³

(c) There was ample evidence before the Court in the form of letters and cards written by KN to CN during the course of the marriage, including after the birth of the children, praising CN’s role as husband and father. Although as Mr Ashmore says it is possible that such communications simply reflect the level of abuse within the relationship on principles analogous to “Stockholm Syndrome”, I

must also be conscious of the risk that, in endeavouring to provide a foundation for her elevated psychological concerns, the allegations KN now directs towards CN are not fairly reflective of his behaviour as a husband and father throughout the marriage.

(d) I have significant concerns about KN’s reference to suicidal thoughts in her most recent meeting with Dr Armstrong where that is the feature which Judge Malosi emphasised in distinguishing Armstrong v Evans²⁴ and where both Dr Armstrong and KN’s GP had previously disclaimed any suicidal tendency. My concern is therefore that evidence has been tailored to fit the relevant legal test. I regard as significant that Dr Armstrong expresses no professional opinion about

these alleged suicidal thoughts. Had he a professional concern that KN was now genuinely at risk of suicide it is inevitable that he would have deposed to it.

(e) If KN is prepared to tailor her evidence in this respect, then I must also be alert to the prospect of her having magnified other concerns for the purposes of her defence.

(f) I must be similarly cautious about the evidence of KN’s mother. In itself her support of her daughter is admirable but she is in my view so closely identified with KN and her endeavours to remain in New Zealand with the children that the objectivity of her evidence is necessarily compromised.

(g) I do not accept Mr Ashmore’s submission that the mitigating factors identified by Judge Malosi in [68] of her judgment are irrelevant. CN has confirmed that the family home is available for occupation by KN and the children. He intends to continue residing with his parents some half hour distant. He will continue to meet the outgoings on the property to provide a home for his children. If on account of negative associations with the property KN does not wish to return there he has

advised the Central Authority in Australia that he is willing for it to be let and another property rented. He says that KN’s car will be available and payments maintained on it. He says he will continue to pay child support at the levels currently being paid.²⁵ In addition, counsel agree, that KN is eligible for an income tested family tax benefit to a maximum amount of $225 per fortnight. While it is

possible that KN may, despite this level of material support, become dysfunctional, nevertheless her position is appreciably better than without it. It must to that extent have some mitigating effect although I accept Mr Ashmore’s submission it would not be sufficient of itself to “appropriately mitigate” “any risk”, if that is what the Family Court

intended.²⁶

(h) It was in my view an inference readily available to Judge Malosi that KN would not be without emotional and practical support from her mother at least through a transitional period. Such support has previously included numerous trips to Australia and for extended periods. That was at a time when KN’s mother was in employment. Since her retirement she has shown high levels of dedication to her daughter and grandchildren bringing to the task not only skills learnt in her own role as a mother but also in her previous professional life as a supervisor for Child Youth and Family. She has accessed (and presumably paid for) psychological assessments and reports for both KN and Z. I have no doubt that this high level of support will continue. Mr Ashmore says there is no evidence she would travel to Australia. The absence of such evidence is scarcely surprising as being against interest but I agree with Judge Malosi that it is a reasonable inference, based on all the historic evidence, that she would do so at the time of the children’s return and that she would

_{continue to support KN with at least periodic trips and regular phone}

²⁵ His statutory obligation is apparently $26 per week only but he has consistently paid in excess of that and has from 25/1/16 been paying $200 per week.

²⁶ I do not in fact read the Family Court judgment in this way. It relies on a composite of factors, including access to a robust legal system in Australia as providing the level of “appropriate mitigation”.

contact until her psychological health had improved. I do not believe that KN’s mother would countenance a situation where her grandchildren were placed into third party care on account of her daughter’s inability to function. All available evidence is that she would step into the breach. That may seem to hoist her by her own petard. It is not intended to do so. Her evident devotion to daughter and grandchildren deserves the highest respect.

(i) The inferences which Judge Malosi and I draw about parental support in Australia do not feature in Dr Armstrong’s updated report. Again that is probably understandable. It was certainly not in KN’s interests to express that fact. However, no reliable conclusion can in my view be expressed as to KN’s ability to function on return without a full understanding of the level of material and emotional support which I infer on what I consider reasonable grounds will be available to her. That is simply not addressed in the updated report.

(j) I regard as significant that there is no evidence before the Court from the psychologist Dr Gail Ratcliffe whose assistance KN sought on arrival in New Zealand. Her knowledge of KN’s circumstances must be appreciably better than could be established by Dr Armstrong on the basis of his more limited contact and, as a highly experienced psychologist, she must be considered to have skills particularly apposite to assessment of functionality as a parent.

Conclusion

[54] I am not satisfied on the evidence that with a history of demonstrated competence and with the level of family support which I consider will be available to her there is grave risk KN would, on return to Australia become so completely dysfunctional that the only available alternative was for the children to go into third party care under state supervision. I accept that there is some risk of dysfunction at this level but I regard as in fact more likely than not that, with ongoing family and professional psychological support, she will function at a level sufficiently adequate

to avoid third party involvement and be assisted to find the strength to do so. That

being the case the high bar of “grave risk” to the children is not in my view met.

[55] As to whether on a worst case scenario involving such temporary third party care the level of psychological risk to the children would be such as to create an intolerable situation I express no concluded view. As Greig J pointed out in H v H “intolerable” must be something significantly more than disruption or trauma.²⁷ It must be something long lasting and serious at a level which simply cannot be tolerated, mindful also of the adaptability of children to quite significant and

traumatic events. Certainly I would not put the risk in the same category as that resulting from, for example, the suicide of a parent. The risks in that respect are profound as Judge Doogue discussed in Armstrong v Evans.²⁸ A court would also need to take into account the fact that the Australian legislative framework contains the same focus on child welfare as its New Zealand counterpart. However, before concluding that temporary third party care did not create a risk of intolerable proportions I would need to hear from experts of whom none were called on this issue.

Result

[56] I decline the appeal.

[57] The children are to be returned to Queensland, Australia within six weeks of delivery of this decision.

[58] In accordance with the request of counsel, leave is reserved to either party or to counsel for the child to seek further directions to the extent necessary to give effect to the order in [57] above.

_{[59] If any issues as to costs arise memoranda may be filed.}

²⁷ _{H v H, above n 20.}

²⁸ Armstrong v Evans, above n 13 at [56].

[60] I thank counsel for their considerable assistance in what has been a difficult

_case.

Muir J