Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions

Robinson v Robinson [2020] NZHC 1765 (22 July 2020)

Last Updated: 25 August 2020

JUDGMENT OF GORDON J

This judgment was delivered by me on 22 July 2020 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: John & Co, Fairfield, Australia

Thomas & Co, Auckland Counsel: V A Crawshaw QC, Auckland

A Ashmore, Auckland S Houghton, Auckland

ROBINSON v ROBINSON [2020] NZHC 1765 [22 July 2020]

TABLE OF CONTENTS

Introduction [1]

Background [8]

Undertakings by the father [25]

The Convention, the statutory framework and UNCROC [27]
Family Court judgment [40]
Child objection defence [42]
Consent/acquiescence [49]
Grave risk defence [52]
Overall discretion [54]

Approach on appeal [56]

No specialist psychologist’s report under s 133 [57]
Fresh evidence [63]

First ground of appeal – child objection defence - s 106(1)(d) [71]

Legal principles [82]

Lawyer for the children – 30 September 2019 report regarding M [88] General practitioner letter – 25 October 2019 regarding M [95] Doctor Farnsworth-Grodd – affidavit 30 October 2019 regarding M [97] Lawyer for the children –2 December 2019 report regarding M [103] Lawyer for the children - 9 June 2020 report regarding M [110] Lawyer for the children - 30 September 2019 report regarding N [116] General practitioner letter – 25 October 2019 regarding N [123] Dr Farnsworth-Grodd – affidavit 30 October 2019 regarding N [124] Lawyer for the children– 2 December 2019 report regarding N [128] Lawyer for the children – 9 June 2020 report regarding N [130] Lawyer for the children – 30 September 2019 report regarding S [134] Lawyer for the children – 2 December 2019 report regarding S [135] Lawyer for the children – 9 June 2020 report regarding S [136]

Further background – H and A [138]

Discussion [148]

Second ground of appeal – consent/acquiescence defence – s 106(1)(b)(ii) [198]

Legal principles [202]
Discussion [208]

Cross appeal – grave risk defence – s 106(1)(c) [233]

Legal principles [242]
Discussion [247]

Third ground of appeal – failure to properly exercise discretion under

s 106(1) [280]

Legal principles [286]
Discussion [292]

Summary of conclusions [300]

Result [301]
Costs [302]

Introduction

• [1] This is an appeal from a decision of Judge Burns in the Family Court at Auckland declining an application for an order under s 105 of the Care of Children Act 2004 (the Act)¹ to return three children (M, N and S) from New Zealand to Australia.²

• [2] It was not disputed in the Family Court (nor was it in this Court) that the children had been wrongfully removed from Australia by the mother;³ that Australia was their habitual residence; that the removal was in breach of the father’s right to custody; and that those rights were being exercised at the time of the removal.⁴ In other words the grounds under s 105(1) for an order to return the three children had been made out.

• [3] The issue in the Family Court was whether the mother, Mrs Robinson,⁵ could make out one or more of the grounds for resisting an order for return, as provided for in s 106(1) of the Act. Judge Burns determined that:

(a) in relation to the two older children, M and N, the child objection defence was made out;⁶

(b) in relation to all three children, the consent/acquiescence defence was made out;⁷

(c) in relation to the youngest child, S, the grave risk of harm/intolerable situation defence was not made out (the Judge expressly did not

1. The application was brought under pt 4 of the Care of Children Act 2004 provisions of which incorporate into New Zealand law the Convention on the Civil Aspects of International Child Abduction, as signed at The Hague on 25 October 1980.

² [Robinson v Robinson] [2020] NZFC 1094.

3. The children came to New Zealand with their mother on holiday with the agreement of the father. The mother and children did not return to Australia. Mr Ashmore, for the mother, characterises the position as a retention rather than an abduction. But he accepts the Hague Convention and the Care of Children Act 2004 apply.

⁴ Section 105(1)(a)-(d).

5. The parties’ surname is fictionalised. They selected the surname Robinson for use in this judgment.

⁶ Care of Children Act 2004, s 106(1)(d).

⁷ Care of Children Act 2004, s 106(1)(b).

consider this defence in relation to the two older children, M and N, having upheld the two defences referred to above for them);⁸

• [4] Having made those findings, the Judge exercised his discretion to decline the application to return in relation to all three children.

• [5] On appeal, it is the case for the father that neither of the defences the Judge accepted was properly available on the evidence before the Court and the Judge erred in his approach to the exercise of his discretion. The Judge should have ordered the return of the children to Australia.

• [6] The mother opposes the appeal and has also filed a cross-appeal against the Judge’s finding that the grave risk defence was not made out in relation to S. The mother also says that defence is established for M and N.

• [7] Ms Houghton, lawyer for the children, supports the mother’s position in relation to the child objection defence and on her cross-appeal.

Background

• [8] The appellant, Dr Robinson, who is the father of all three children, was born in Iraq and has lived in Australia since 1992. He is a registered general medical practitioner and an Australian and Iraqi citizen.

• [9] The respondent, Mrs Robinson, who is the mother of all three children, was born in Iran to a New Zealand mother and Iranian father. Her family lived in both the Middle East and New Zealand before moving to New Zealand permanently in 1984.

• [10] The mother and father met in New Zealand in 1996 while the father was visiting his brother here. They married in Auckland on 21 July 1997. More or less immediately following their marriage they moved to Sydney, Australia. They remained living together in Sydney until 7 July 2019. As at that date they had been married for 22 years. They had not separated. The mother is a registered nurse and

⁸ Care of Children Act 2004, s 106(1)(c).

worked for the father in his medical practice. The mother is an Australian, New Zealand and Iranian citizen.

• [11] There are six children of the marriage. They were all born in Australia. The three older children, who are not the subject of this proceeding, are:

(a) I, born 28 October 1998 (son, 21 years old);

(b) H, born 12 July 2000 (son, 20 years old); and

(c) A, born 28 October 2001 (daughter, 18 years old).

• [12] The oldest son, I, remains in Australia. He is studying at Sydney University and works part time. He continues to live with his father. H and A have lived in New Zealand since late 2018. They commenced tertiary study in 2019 in Auckland. They are both living with their maternal grandparents and members of the mother’s wider family in Auckland.

• [13] The three younger children, who are the subject of this proceeding, are:

(a) M, born 24 August 2005 (daughter, aged 14 years almost 15);

(b) N, born 6 November 2006 (son, aged 13 and a half years); and

(c) S, born 9 August 2015 (son, aged 4 years, almost 5).

• [14] Between 15 and 24 April 2019, the mother and the three younger children came to New Zealand for a holiday at the end of the first school term. They returned to Australia at the end of the holiday. On 7 July 2019, the mother and the three younger children again travelled to New Zealand for a pre-arranged holiday. Return tickets to Australia were booked for 21 July 2019.

• [15] On 19 July 2019, the mother’s Australian solicitor sent a letter by email advising the father that the mother considered the marriage to be at an end and that neither she nor the three younger children would be returning to Australia. The father

says he read the letter on 20 July 2019, when he searched his emails, after hearing from the oldest son, I, who had received a message from his mother that day. The message said she did not intend to return to Australia with the three younger children as previously arranged.

• [16] There were a number of telephone conversations between the mother and father from this date, which are relevant to the issue of whether or not the father acquiesced in the three younger children remaining in New Zealand. On 26 July 2019, I, and the father’s brother, O, travelled to New Zealand. Their evidence is that this was an in an endeavour to encourage the mother to return to Australia with the three children.

• [17] There were further telephone conversations between the mother and father. Then the father came to New Zealand on 30 July 2019 with I. The father’s evidence is that he had hoped to meet with the mother with the intention of persuading her to return to Australia with the three younger children. He was not able to meet her or the children as a result of being served with a Trespass Order. The father and I returned to Australia on 1 August 2019.

• [18] On 2 August 2019, the mother filed proceedings in the Family Court of Australia seeking a variety of protective and injunctive orders on an interim and final basis, both in relation to the person and in relation to property, including orders that the children live with the mother in New Zealand on an interim and permanent basis.

• [19] The application seeking the return of the three children to Australia was lodged with the Australian Central Authority on 12 August 2019 and the application to the Family Court in New Zealand was filed on 19 August 2019.

• [20] The mother and M, N and S are living in New Zealand with the mother’s parents and members of the mother’s extended family along with the two older children, H and A.

• [21] The case for the mother is that the family’s life in Australia was marred by physical violence, emotional harm and extremely controlling behaviour by the father.

For example, no one was allowed to have their own general practitioner unless the father requested it. He was in charge of all the finances and spending. Any questions about that resulted in physical and verbal abuse. She says this was a dynamic that operated for over 20 years and which has had a significant psychological impact on her and the children. The mother says in early 2019, M began to show increasingly volatile and irrational mood swings. Then in March 2019, M began cutting herself. It was the deterioration in M’s mental health and the complexity of her needs that was a major driver in the mother’s decision to leave Australia. She was concerned that M was following the same patterns as A (which I will refer to later in this judgment). The mother says she could not return to Australia for the health and wellbeing of her children.

• [22] The father emphatically denies the allegations of physical and mental abuse by him. He says he has never used physical force to discipline the children. At most, he says, he used reasonable force as punishment when the children were young, but only to correct and discipline them. He says he was more patient with the children than the mother. He says she would regularly get upset and aggressive towards the children. He says he has witnessed her over the years using physical punishment towards them and she would also often use denigrating and derogatory words towards the children. She has also been physically violent towards him. He denies he controlled the lives of the mother and children. He says he was the medical practitioner for them but that they have consulted other doctors whose names he mentions.

• [23] The father says that the relationship he had with his children, particularly the three youngest children who are the subject of this proceeding, was nothing but a loving, caring, strong and respectful relationship up until the time they left Australia for New Zealand on 7 July 2019. The children have always been and will always be his first priority and he has always been very active and involved in their lives. He tried to create an environment of love and respect in their home and provided generously for them.

• [24] There is no independent evidence supporting the allegations of violence on the part of either parent. Both M and N say that their father was physically violent towards them and psychologically abusive. However, the oldest son, I, says that he does not

recall the father being physically or mentally abusive towards him or any of his siblings.

Undertakings by the father

• [25] It is necessary to mention undertakings given by the father. In his affidavit of 22 November 2019, the father provided undertakings in the following terms:

18. I also provide the following undertaking in an endeavour to make it abundantly clear that the Respondent and the children will not be exposed to any unacceptable risk of harm, physically or mentally if they return to Australia, in that;

(a) I will vacate the matrimonial home and agree for the Respondent and the children to have sole occupancy of the matrimonial home pending any Court determination in Australia on the issue of relocation;

(b) I will not interfere with the Respondent or contact her, unless through a lawyer;

(c) I will not interfere with the children or contact them unless through a Court order;

(d) I will be fully responsible for all the children’s school fees and tuitions.

(e) I will pay the Respondent the sum of $500.00 per week, by way of living expenses, into a nominated account, pending further Court determination in Australia on the financial affairs.

(f) I am prepared to give a similar undertaking in the current Court proceedings in Australia.

• [26] The undertakings are relevant to both the child objection and grave risk of intolerable situation defences.

The Convention, the statutory framework and UNCROC

• [27] The Hague Convention (Convention) as it is known, was adopted by the Hague Conference on Private International Law on 25 October 1980. New Zealand became a party to the Convention with effect from 1 August 1991.

• [28] The underlying premise of the Convention is that disputes over care and control of children should be determined in the courts of the jurisdiction that comprise the

child’s habitual residence. Removal of children from their country of habitual residence without lawful permission or consent of all guardians is treated as abduction. The Convention seeks to ensure the prompt return of an abducted child to the child’s State of habitual residence unless one of the prescribed exceptions applies and return is not appropriate.

• [29] This Court is therefore concerned with the forum for disputes over care and control of children rather than making a substantive determination on those issues. As was observed by McGrath J in Secretary for Justice v HJ:⁹

Overall it must always be borne in mind that, in cases in which an application for return is made in accordance with the Convention, the judicial task is to decide the appropriate forum for determination of the child’s interests, rather than to undertake a thorough investigation of those interests.

• [30] The operative provisions of the Convention for present purposes are articles 12 and 13. It is not necessary to set out those articles in this judgment. They are implemented in New Zealand by ss 105 and 106 of the Act. Section 105 provides:

105. Application to court for return of child abducted to New Zealand

(1) An application for an order for the return of a child may be made to a court having jurisdiction under this subpart by, or on behalf of, a person who claims—

(a) that the child is present in New Zealand; and

(b) that the child was removed from another Contracting State in breach of that person’s rights of custody in respect of the child; and

(c) that at the time of that removal those rights of custody were actually being exercised by that person, or would have been so exercised but for the removal; and

(d) that the child was habitually resident in that other Contracting State immediately before the removal.

(2) Subject to section 106, a court must make an order that the child in respect of whom the application is made be returned promptly to the person or country specified in the order if—

(a) an application under subsection (1) is made to the court; and

⁹ Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289 at [131].

(b) the court is satisfied that the grounds of the application are made out.

(3) A court hearing an application made under subsection (1) in relation to the removal of a child from a Contracting State to New Zealand may request the applicant to obtain an order from a court of that State, or a decision of a competent authority of that State, declaring that the removal was wrongful within the meaning of Article 3 of the Convention as it applies in that State, and may adjourn the proceedings for that purpose.

(4) A court may dismiss an application made to it under subsection (1) in respect of a child or adjourn the proceedings if the court—

(a) is not satisfied that the child is in New Zealand; or

(b) is satisfied that the child has been taken out of New Zealand to another country.

• [31] As already noted there is no issue that the grounds in s 105(1) are made out. The focus in the Family Court and on appeal has been whether any of the grounds for refusal of a return order set out in s 106 is made out. That section relevantly 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—

...

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

...

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

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

...

(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

...

• [32] The Convention is treated as having a deterrent purpose or function. In commenting on the s 106 exceptions to what is otherwise the requirement to order return of the child under s 105, Tipping J for the majority in the Supreme Court observed:¹⁰

[40] ... all the exceptions must be approached with an understanding of their shared context, within a Convention that has the general purpose of deterring child abductions. That is achieved by ensuring prompt return in cases where no ground to refuse return is established. When such a ground is established the Convention envisages an inquiry into whether its deterrent purpose should prevail over the interests of the particular child or children.

(citation omitted)

• [33] In the recent judgment of LRR v COL,¹¹ the Court of Appeal discussed the Convention, the New Zealand implementing legislation and the general principles underlying the Convention before applying those principles to the defence in that case (s 106(1)(c)(ii) – grave risk of intolerable situation) and to the exercise of the discretion. On the general principles of the Convention the Court of Appeal said:

• [78] However the Convention identifies certain circumstances in which the return of a child to its State of habitual residence may not be appropriate, because return would be contrary to the interests of that child. The presumption that the best interests of the child will be served by a prompt return to the country where they are habitually resident is displaced in these circumstances.

• [79] It cannot be emphasised too strongly that the exceptions set out in Article 13 [implemented in s 106] are as integral to the scheme of the Convention as the Article 12 provision [implemented in s 105] for prompt orders for return. The circumstances in which the Convention does not require an order for return of the child are carefully circumscribed. It is not the function of the requested State to conduct a wide-ranging inquiry into the best interests of the child. But the prompt and focused inquiry required by the provisions of the Convention is designed to ensure that the outcome does serve the interests of the particular child. As Baroness Hale said in Re D:

... No one intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm.

(citation omitted)

¹⁰ Secretary for Justice v HJ, above n 9.

¹¹ LRR v COL [2020] NZCA 209.

• [34] The Court of Appeal also referred to the relationship between the Convention and international human rights instruments, including the United Nations Convention on the Rights of the Child (UNCROC). The latter was considered by the United Kingdom Supreme Court in Re E. Delivering the judgment of the Court, Baroness Hale and Lord Wilson said:¹²
  14. ... the fact that the best interests of the child are not expressly made a primary consideration in Hague Convention proceedings, does not mean that they are not at the forefront of the whole exercise. ... the aim of the Convention is as much to deter people from wrongfully abducting children as it is to serve the best interests of the children who have been abducted. But it also aims to serve the best interests of the individual child. It does so by making certain rebuttable assumptions about what will best achieve this.

15. Nowhere does the Convention state that its objective is to serve the best interests of the adult person, institution or other body whose custody rights have been infringed by the abduction. ... The assumption then is that if there is a dispute about any aspect of the future upbringing of the child the interests of the child should be of paramount importance in resolving that dispute. Unilateral action should not be permitted to pre-empt or delay that resolution. Hence the next assumption is that the best interests of the child will be served by a prompt return to the country where she is habitually resident. Restoring a child to her familiar surroundings is seen as likely to be a good thing in its own right. As our own 1989 Act [Children Act 1989] makes clear, in section 1(3)(c), the likely effect upon a child of any change in her circumstances is always a relevant factor in deciding what will be best. But it is also seen as likely to promote the best resolution for her of any dispute about her future, for the courts and the public authorities in her own country will have access to the best evidence and information about what that will be.

16. Those assumptions may be rebutted, albeit in a limited range of circumstances, but all of them are inspired by the best interests of the child. Thus the requested state may decline to order the return of a child if proceedings were begun more than a year after her removal and she is now settled in her new environment (art 12); or if the person left behind has consented to or acquiesced in the removal or retention or was not exercising his rights at the time (art 13a); or if the child objects to being returned and has attained an age and maturity at which it is appropriate to take account of her views (art 13); or, of course, if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” (art 13b). These are all situations in which the general underlying assumptions about what will best serve the interests of the child may not be valid. We now understand that, although children do not always know what is best for them, they may have an acute perception of what is going on around them and their own authentic views about the right and proper way to resolve matters.

¹² Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144.

• [35] The Court of Appeal noted that the United Kingdom Supreme Court went on to say that the exceptions to the obligation to return are, by their very nature, restricted in scope and do not need any extra interpretation or gloss.¹³ The Court of Appeal also noted that the High Court of Australia had rejected the proposition that the exceptions should be “narrowly construed”.¹⁴

• [36] The Court of Appeal stated that the above observations are equally relevant to the Act. This is emphasised by s 4 of the Act, which provides that the welfare and bests interests of the child, in his or her particular circumstances, must be the first and paramount consideration in proceedings under the Act and in any other proceedings involving guardianship or day to day care for, or contact with, a child.

• [37] The Court of Appeal continued:

• [83] ... The inquiry into the best interests of the child must be approached in the manner contemplated by ss 105 to 107. But it remains the case that the welfare and best interests of the child are, as the United Kingdom Supreme Court put it in Re E, at the forefront of the whole exercise. The outcome does not turn on the interests of the parents or guardians of the child, or for that matter of the relevant Central Authorities or States.

• [84] For essentially the same reasons there is no inconsistency between the Convention and the Act, properly understood and applied, and the UNCRC requirement that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

(citation omitted)

• [38] Where one or more of the exceptions in s 106 is made out, the Court must still undertake an overall assessment to determine whether, in the circumstances of the case, it is appropriate to refuse to make an order for return of the child. In an appeal to the House of Lords involving two girls aged 10 and 13, Baroness Hale referred to a line of authorities in which the discretion had been approached on the basis that

¹³ LRR v COL, above n 11, at [81] referring to [52] of Re E.

¹⁴ At [81] citing DP v Commonwealth Central Authority [2001] HCA 39, [2006] CLR 401.

refusing an order for return should only occur in “exceptional cases”. Baroness Hale, in rejecting any such requirement stated:¹⁵

... I have no doubt at all that it is wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which return may be refused are themselves exceptions to the general rule. That in itself is sufficient exceptionality. It is neither necessary nor desirable to import an additional gloss into the convention.

• [39] Finally, the burden of proof to establish the existence of a defence under s 106 is on the abducting parent, to the civil standard of the balance of probabilities.

Family Court judgment

• [40] The Judge first addressed the admissibility of evidence. There was no specialist psychologist’s report under s 133 of the Act. I will address this issue shortly. In a pre-trial conference, a Family Court Judge ruled that psychological material could be placed before the Court by the mother, who then filed an affidavit of psychologist Dr Virginia Farnsworth-Grodd. That affidavit referred to the involvement of a general practitioner for the five children in New Zealand and the Kari Centre.

• [41] The father objected to the admission of correspondence from the general practitioner; correspondence from the Kari Centre; and a selection of case notes from a variety of sources in Australia and New Zealand all annexed to an affidavit of the mother. The Judge admitted the evidence, noting the reporting letters from the Kari Centre regarding the older sister A formed part of the background of the consultations that had taken place in Auckland since the children arrived. The Judge said that while A was outside of the jurisdiction of the Court, issues relating to her formed part of the background and context in which the circumstances had arisen. The Judge therefore said he had no difficulty in finding that the information provided by the general practitioner, the Kari Centre and the psychologist was relevant and probative, particularly having regard to the complete contradiction between the mother and father as to what had happened in their household over the preceding 20 years.

¹⁵ Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 at [40].

Child objection defence

• [42] The Judge first quoted extensively (just over nine pages of the judgment) from the two reports of Ms Houghton, lawyer for the three children. The first report is dated 30 September 2019 and the second is dated 2 December 2019 (four days before the hearing).

• [43] The Judge described both M and N as mature and thoughtful for their age. The Judge said, based on what they had told lawyer for the children, M and N had given careful consideration to the situation they had found themselves in and had been able to give logical and rational reasons for their objections. The Judge found confirmation of the level of intelligence and maturity of both M and N in their school reports. He found that N was not quite as mature as his sister, but the Judge concluded both had intelligence and maturity higher than average for children of their ages.

• [44] The Judge then referred to the well settled four-stage approach to this defence.¹⁶

• [45] On the first question, does the child object to return, the Judge stated that the answer was “clearly yes” for both M and N. The Judge noted that the youngest, S, was not sufficiently old enough for Ms Houghton to ascertain his views.

• [46] On the second question, the Judge considered that both M and N had attained an age and degree of maturity at which it is appropriate to give weight to their views for the following reasons:

(a) they were able to give consideration to the effect of a loss of relationship with their older siblings should they return to Sydney;

(b) they were able to take into account that they were both settled in their respective schools;

(c) they were able to take into account that they receive support from a wide extended family and were in a busy family home which appeared to be a positive environment for them;

(d) they were able to consider and express their view about the comparative life back in Australia should that occur;

¹⁶ White v Northumberland [2006] NZCA 446; (2006) 26 FRNZ 189 (CA).

(e) I think both were prepared to consider and modify their views after being advised of the undertaking given by the applicant to allow them to return to the former family home on their return to Sydney and the provision of ongoing financial support. This indicated to me that the views held were not intransigent;

(f) although there is reference to the psychological issues and conduct of their father in the home I do not consider I need to make a finding about that in terms of the validity of the objection. ... The evidence from Dr Farnsworth-Grodd indicates that [M] has a well-formed and thought-out basis for objection to father’s conduct in their home in Sydney. This is a view held consistently by all of the children with the exception of the oldest but it is clear that there are a number of reasons for the objection in addition to the concerns about psychological safety.

• [47] Despite having referred to the four stage approach, the Judge did not consider the third step, namely the weight that should be given to the views of M and N.

• [48] The Judge then moved to the fourth step, the exercise of the discretion, before considering the other defences raised. The Judge said he could not see any compelling reason not to exercise the discretion to uphold the objection by both M and N. The Judge said this was particularly in the context where both children had lived in New Zealand for a period and had a clear basis for comparing their two situations. The Judge considered a major factor in the views expressed, and the objection to return, was the loss of the relationship with their two older siblings, whom the Judge found they were clearly very close to. The Judge said when he stood back and looked at the matter overall, taking the mother’s evidence into account as corroborating the children’s views as conveyed to lawyer for the children, their objections should be upheld.

Consent/acquiescence

• [49] The Judge set out in full the written submissions of counsel for the father on consent. However the Judge omitted counsel’s submissions on acquiescence. The Judge found that the father did give his consent to all three children remaining in New Zealand in the course of a telephone conversation with the mother on 21 July 2019. The Judge accepted the mother’s evidence and found the mother and father had an amicable discussion during which the merits of the three children remaining in New Zealand were expressed and discussed fully. In accepting the mother’s evidence, the

Judge said it was supported by the fact she immediately instructed her lawyer and a letter was sent to the father by her lawyer confirming the position. The Judge referred to the sense of excitement around the household and relief following the phone call as a result of permission having been given to stay in New Zealand. The Judge also referred to the mother’s action of enrolling M and N at a secondary school shortly after the phone call.

• [50] The Judge found that the father had clearly changed his mind when, in a long telephone conversation on 27 July 2019, he said he wanted the mother and the children to come back to Australia with his brother.

• [51] The Judge considered the father understandably wanted, in the first instance, to placate and please the mother and made a decision to accept the situation and give his consent. However, within a relatively short time, upon written confirmation of that consent being sought and after discussions with others, he changed his mind and was party to sending his brother and son I to New Zealand. He subsequently came to New Zealand himself. The Judge referred to the legal principle in relation to consent, saying that once consent is given it could not be withdrawn after removal has taken place. He said removal had clearly taken place. (The Judge did not refer to acquiescence). The Judge concluded that consent was given in relation to all three children. He said he accepted the evidence given by the mother on this point, corroborated by the mother’s two sisters and maternal grandmother.

Grave risk defence

• [52] The Judge noted there are two parts to the statutory defence: first, whether the return would expose the children to physical or psychological hardship (the word used in the Act is in fact “harm”) or, second, would place the children in an intolerable situation. The Judge said that since he had upheld the objections by M and N, and also having found that the father consented to their remaining in New Zealand, he did not have to consider this defence for them. He said, however, he had decided to consider the defence in relation to the youngest child, S. The Judge noted there is a very high threshold to establish this defence. He said the primary basis would be that S, at the age of four, would be ordered to return to Australia, with his other four siblings

remaining in New Zealand with their mother. The converse, the Judge said, would be that the mother would accompany S and leave the other siblings in New Zealand to be cared for by members of her family. He said this would place the mother in a very difficult dilemma but he could not be satisfied that it would expose S to a grave risk.

• [53] The Judge said it was clear the Australian Family Court system could effectively make decisions in S’s best interest and welfare. The Judge took into account there was financial and material provision available to house S and look after him. He would have his father and oldest brother available to assist. The Judge said there was very little evidence S would be exposed to any physical, emotional or psychological violence. He said the psychological matters referred to by the mother in her affidavit had impacted on the older children, particularly the two female children (A and M), but there was no evidence that S had been exposed to any psychological issues “which would justify placing him in grave risk”. The Judge said this was particularly so having regard to the undertaking given by the father that he would vacate the family home and provide financial support for the mother to enable her to return with the child. The Judge said he could not find that S would be exposed to “an intolerable situation or a grave risk”.

Overall discretion

• [54] Having already applied his discretion in relation to the child objection defence on its own, the Judge finally exercised his discretion in relation to that defence again and the consent/acquiescence defence. He refused to order the return of the children.

• [55] He said he took into account the following factors. The three children, together with their two older siblings, appeared to be comfortable and were progressing well in New Zealand. He said the situation was stable. The Judge was satisfied that appropriate contact arrangements could be worked out and, failing that, they could be the subject of a hearing in a relatively short time in the Auckland Family Court. The Judge also considered the father had the financial resources to be able to exercise contact on a regular basis in Auckland. He expressed himself satisfied that the three children were receiving appropriate educational care and were being well housed and looked after. He said they had access to considerable family support and he took into

account the reasons behind their objections and the reasons for the discretion vested in the Court. The Judge did not see any reason to depart from the decision made. He declined to make an order for their return.

Approach on appeal

• [56] The appeal is brought under s 143 of the Act. It is a general appeal.¹⁷ Although s 106(1) of the Act is commonly described as involving an exercise of discretion, the Supreme Court confirmed in Simpson v Hamilton,¹⁸ that Austin, Nichols & Co Inc v Stichting Lodestar¹⁹ applies to the entire matter. The approach in May v May²⁰ does not apply to any part of an appeal against a decision under s 106.²¹ This Court is therefore required to consider matters afresh and arrive at its own assessment of the merits of the case. No particular deference is required to the lower court for its factual findings. That is particularly so in Hague Convention proceedings, which are normally (as in this case) dealt with on affidavit evidence without cross-examination.

No specialist psychologist’s report under s 133

• [57] In the Family Court, in a memorandum for a pre-trial conference, Mr Ashmore, for the mother, submitted that a specialist psychologist’s report should be ordered under s 133 of the Act. This application was based on the mother’s case that the separation of the siblings would place the younger children in an intolerable situation, particularly given the complexity of the family dynamics and the presence of mental health issues for all children.

• [58] In the face of opposition by the father, no report was ordered. Nor did Judge Burns interview M and N. In this Court, Ms Crawshaw QC (who was not counsel in the Family Court), for the father, raised the lack of a s 133 report in the

¹⁷ Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]- [32].

¹⁸ Simpson v Hamilton [2020] NZSC 42 at fn 34.

¹⁹ Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

²⁰ May v May (1982) 1 NZFLR 165 (CA).

²¹ In Simpson v Hamilton, above n 18, the Supreme Court noted at fn 34 that the High Court had applied May v May as governing the principles that apply on appeal. The footnote further states it was (correctly) agreed by the parties in the Court of Appeal that Austin, Nichols applied rather than May v May. The Supreme Court referred to the Court of Appeal judgment at [44], where the Court of Appeal noted that the High Court should not have treated any aspect of the appeal as being governed by the approach directed by the CA in May v May.

context of her submissions on the child objection defence and the weight to be given to the views of M and N. These submissions were particularly concerned with possible influence by members of the maternal family on the objections to return expressed by M and N. Ms Crawshaw submits that this Court has three options: one is to consider weight itself; another is that the Court could refer the matter back to the Family Court; or, finally, the Court could call for a s 133 report itself to address the issue of potential influence on the views expressed by M and N.

• [59] Ms Crawshaw’s position on those three options is that there is sufficient evidence to enable the Court to conclude it should not give unquestioned weight to the views of M and N and that a s 133 report is not necessary to reach such a view. She submits this Court is in a position to decide not to give undue weight to the objections by M and N and to exercise the discretion to allow their return to Australia.

• [60] In LRR v COL the Court of Appeal referred to the Convention requiring the Court in a requested State to walk a delicate line between ensuring that the application is determined promptly, and ensuring that proper attention is paid to the important and often strongly contested issues that can arise in the context of Convention applications. The Court of Appeal said the temptation to conduct a full inquiry into the welfare and interests of the child must be resisted. On the other hand the Court said that the Convention and the Act require the Court to conduct a proper inquiry, based on evidence rather than speculation, into facts relevant to any exception that is invoked.²² The Court continued by saying:

[104] ... Appropriate case management is essential to ensure that the issues are identified, and evidence relevant to those issues is provided to the court, in the shortest feasible timeframe. At an early stage the court should consider what evidence the parties propose to provide, and whether additional evidence is needed to enable the court to make an informed decision under s 106. Depending on the issues raised, it may be desirable to appoint an independent psychologist to prepare a report. In some cases it will be desirable to appoint counsel for the child, who can ascertain the views of the child and represent the child’s interests in the proceedings. ...

(citations omitted)

²² LRR v COL, above n 11 at [101].

• [61] In my view there should not be further delay by sending the matter back to the Family Court for that Court to obtain a s 133 report nor for this Court to call for a report itself. It is now over 11 months since the application seeking the return of the children was lodged with the Australian Central Authority.

• [62] I have no doubt that a s 133 report would have been of assistance. But in its absence, the Court has three reports from lawyer for the children, an affidavit from a psychologist (albeit not a Court appointed psychologist) and a letter from the children’s general practitioner.²³ I consider such evidential basis, together with all the other evidence, is sufficient to allow the Court to reach a conclusion both on the grave risk defence and on the weight to be attached to the objections of M and N. This includes whether the weight should be adjusted due to the possibility of influence by the mother and/or other members of the family in New Zealand.

Fresh evidence

• [63] The father applied in advance of the hearing for leave to adduce fresh evidence on appeal. The application was not opposed by the mother, provided she had a right of reply. In consequence of that agreement, the application was not addressed prior to the hearing of the appeal.

• [64] For the father there are two affidavits, one from him affirmed on 12 June 2020, and one from his Australia solicitor, John Putrus, affirmed on 15 June 2020. The father’s affidavit mainly addresses updating matters and also annexes application documents from the Family Court proceedings in Australia. Evidence in those proceedings had been filed in the Family Court in New Zealand but not the applications.

• [65] There are also copies of interim Court orders dated 14 April 2020 made by consent in the Family Court of Australia: directing fortnightly payments by the father to the mother; regarding sale of properties and the disbursement of the proceeds of sale of one of those properties. Also annexed is a copy of the undertakings given by

²³ See comments by the Court of Appeal in LRR v COL, above n 11, at [106] as to the need for necessary evidence to enable an informed decision even if that entails some further delay. But the outcome – delay – is problematic.

the father in the Family Court in Australia. They are to the same effect as the undertakings referred to in [25] above, save that the reference to school fees is “reasonable” school fees.

• [66] The father confirms that in accordance with his undertakings he recently moved out of the former family home. He also refers to efforts to contact his children. He says that since the Family Court hearing on 6 December 2019, he has been telephoning to speak with the children every Friday. He says he has not been able to get through to speak with the children since 10 April 2020. He says he has not been able to speak to S at all since he was taken to New Zealand, although he has called to speak to him.

• [67] In his affidavit, Mr Putrus says it is usual practice in the Family Court of Australia to file undertakings with the Court. Undertakings are enforceable, and if breached the sanction for such breaches is contempt of Court which is punishable by a fine or imprisonment. Mr Putrus says in Australia the undertaking has the same effect as an order of the Court.

• [68] The mother filed two affidavits in reply. One is from Wazhma Sultanzada, the instructing solicitor representing the mother in the Family Court of Australia, affirmed on 19 June 2020. Ms Sultanzada refers to Mr Putrus’ affidavit. She says the undertaking filed in the Family Court has not been served. She said this is highly unusual. However, she does not state that there is any consequence where service is not contemporaneous with filing.

• [69] The other affidavit is from the mother affirmed on 22 June 2020. She takes issue with the father’s statement that he has not talked to the children since 10 April 2020. She sets out details of calls she claims were made, annexing screenshots of her phone, and comments on the call log that is annexed to the father’s affidavit. As far as S is concerned, the mother says she accepts that S and the father do not communicate for long as S simply does not want to speak to him. On occasions when the father is speaking to the other children with the phone on speakerphone, S is present.
• [70] The telephone call evidence continues the dispute between the parties on virtually all issues. It is fresh evidence. But it is peripheral to the issues I need to decide and I do not admit it. However other parts of the affidavits are of assistance to the Court. Apart from the applications in the Family Court in Australia, which it seems were inadvertently omitted from the evidence filed in the Family Court here, it is fresh evidence. Save for the telephone call evidence, I admit the evidence in the new affidavits in the interests of justice.²⁴

First ground of appeal – child objection defence - s 106(1)(d)

• [71] Ms Crawshaw submits the Judge failed to properly apply the correct test to determine whether the child objection defence was made out. In particular, Ms Crawshaw submits, the Judge erred in law in failing to consider the weight to be given to the objections by M and N. As a result of that failure, the Judge did not properly assess the stated objections. In failing to consider the weight to be given to the objections by M and N the Judge omitted to consider a number of factors (which I will address in due course). Ms Crawshaw submits that had those factors been properly considered and taken into account, little weight should have been accorded the objections of M and N to returning to Australia.

• [72] Ms Crawshaw submits the Judge erred in law in a second way by purporting to exercise a discretion in respect of the s106(1)(d) defence alone, rather than considering the effect of the statutory discretion as the final step in the overall analysis required under s 106(1). In doing so the Judge also incorrectly approached the exercise of his discretion on the basis of an implied presumption of “upholding” the children’s objections in the absence of compelling reasons not to do so. Ms Crawshaw submits there is no basis in law for any such presumption.

• [73] Ms Crawshaw identifies what she submits is a third error of law. She says the weight to be given to a child’s objection, and any relevant matters determinative of that weight, must also be taken into account by the Court in the proper exercise of the statutory discretion under s 106(1). She submits the Judge’s failure to consider the

24. See discussion in LRR v COL, above n 11, on the admission of fresh evidence on appeal at [121]- [128].

weight to be given to the children’s objection, and the consequent failure to take that into account in the later overall exercise of his discretion not to order the return of the children to Australia, led to a further error of law.

• [74] Mr Ashmore, for the mother, concedes there are what he describes as “problematic aspects of the decision” of the Judge. In particular, and in relation to this defence, Mr Ashmore concedes that the Judge appeared to omit the “weight” step in the White v Northumberland²⁵ approach.

• [75] Mr Ashmore also concedes that when the Judge purported to exercise his discretion in respect of the child objection defence alone, he appeared to proceed on the basis of some form of presumption in favour of retention in New Zealand which Mr Ashmore accepts is incorrect.

• [76] Having made those concessions, Mr Ashmore submits that it is not simply the case that return must be ordered if errors in the Judge’s decision are established. This Court is able to reconsider the case. In particular, Mr Ashmore notes the updated views of M and N, which he says are considerably more forceful than those before the Family Court.

• [77] In terms of the White v Northumberland approach, Mr Ashmore submits M and N clearly object (step 1); M and N are at an age and of sufficient maturity, so the second step is satisfied; and in relation to weight, the views of M and N are based upon their lived experience in Australia and they are strongly held and passionate. Most importantly, they make it very clear that it is return to Australia, rather than return to the family home with the father present, to which they object. Notwithstanding undertakings by the father, or other protective measures, they will not feel safe and comfortable in that environment.

• [78] Mr Ashmore refers to each of the factors Ms Crawshaw submits the Court should consider in relation to weight and says the father’s arguments are an invitation to this Court to disregard the very powerful objections raised by M and N.

²⁵ White v Northumberland, above n 16.

• [79] Ms Houghton, lawyer for the children, submits the Judge was correct in concluding the child objection defence was made out. She submits both M and N clearly reported strong objections which were expressed in unequivocal terms and they each provided their own explanation. She submits that even if someone may have had influence over their views (though she says the evidence does not establish that), they are aged nearly 15 years (M) and 13.5 years (N). They are of an age and maturity in which it is appropriate to give weight to their views.

• [80] As to the weight to be given to their views, Ms Houghton submits that while the Judge did not address the issue of weight as a separate step in his decision, when the relevant part of the judgment is read as a whole, it is clear that the Judge found it appropriate to place significant weight on the views of M and N. She also submits there is no ground for not placing significant weight on their views having regard to the explanations given by them, their ages, their maturity and intelligence, and the strength of the language they have used.

• [81] Ms Houghton also responds to each of the factors which Ms Crawshaw submits must be taken into account in assessing weight and says that none of those alter her submission on the issue of the weight to be given to M and N’s views.

Legal principles

• [82] All counsel agree the approach the Court should follow is that set out in White v Northumberland,²⁶ where the Court of Appeal endorsed the approach taken by the High Court. There are four steps, although, as Mr Ashmore points out, it is in fact a three step test with the discretion being the fourth step. The questions to be answered by the Court are:

(a) Does the child object to return?

(b) If so, has the child attained an age and degree of maturity at which it is appropriate to give weight to the child’s views?

²⁶ White v Northumberland, above n 16.

(c) If so, what weight should be given to the child’s views?

(d) And how should the residual statutory discretion be exercised?

• [83] Steps 1 to 3 are cumulative threshold requirements. Only once all three have been satisfied does it become necessary for the Court to consider whether its discretion to refuse return should be exercised.²⁷ There is “no hard and fast rule that the objection of a child will be determinative when [the child] reaches a particular age or state of maturity”.²⁸ The position is as stated by Fisher J in S v S.²⁹

... as a matter of degree the weight to be attached to the wish will turn upon all the surrounding circumstances. “Age and degree of maturity” are expressly referred to in s 13(1)(d) and para 30 of the report on the convention quoted earlier. Other considerations will include the cogency of any reasons given by the child and the possible role of external influences.

...

The weight to be attached to such wishes will turn upon age and maturity, the reasons given by the child, possible influences upon the child, competing considerations and all the surrounding circumstances.

• [84] In Re T,³⁰ a judgment of the Court of Appeal of England and Wales, it was stated that “an ascertainment of the strength of the validity” of a child’s objection called for an examination of the following:

(a) What is the child’s own perspective of what is in her interests, short, medium and long-term? Self-perception is important because it is her views which have to be judged appropriate.

(b) To what extent, if at all, are the reasons for objection rooted in reality or might reasonably appear to the child to be so grounded?

(c) To what extent have those views been shaped or even coloured by undue influence and pressure, directly or indirectly exerted by the abducting parent?

(d) To what extent will the objections be mollified on return and, where it is the case, on removal from any pernicious influence from the abducting parent?

²⁷ AHC v CAC HC Auckland CIV-2011-404-727, 4 May 2011 at [79]-[80].

²⁸ JRW v EW HC Dunedin CIV-2006-412-720, 16 October 2006 at [49].

29. S v S [1999] 3 NZLR 513 (HC) at 522-523. Leave to appeal Fisher J’s decision was refused by the Court of Appeal.

³⁰ Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192 (CA) at 204, per Ward LJ.

• [85] In the House of Lords decision Re D, Baroness Hale made the following observation regarding a child’s views:³¹

... there is a large difference between taking account of a child’s views and doing what he wants. Especially in Hague Convention cases, the relevance of the child’s views to the issues in the case may be limited. But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

• [86] No issue is taken with the Judge’s application of steps 1 and 2 of White v Northumberland. Although the Judge set out the correct approach, he failed to consider step 3. The Judge was required to consider all relevant evidence and reach a conclusion on the weight to be attached to the views of M and N. The Judge erred in law in not doing so. I do not accept Ms Houghton’s submission that, from an overall reading of this part of the judgment, it can be discerned that the Judge placed significant weight on the views of M and N. That is not sufficient.

• [87] In order to determine the weight to be given to M and N’s objections, I will address each of the factors Ms Crawshaw submits the Judge failed to consider and which, she says, he should have considered. It is also necessary to consider those factors in the context of all of the evidence. But first I summarise the objections of M and N, as contained in the two detailed reports of lawyer for the children in the Family Court and her updated report dated 9 June 2020 filed in this Court. I also refer to the relevant parts of the report of psychologist Dr Farnsworth-Grodd and the letter from Dr Husain. Finally, I mention the position regarding S.

Lawyer for the children – 30 September 2019 report regarding M

• [88] I start with the daughter M.

• [89] Ms Houghton made clear to M that the proceeding before the Court was not about where they live on a longer term basis, but whether they return to Australia or

³¹ Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 at [57].

remain in New Zealand while decisions were made regarding any longer term arrangements. She said that M understood that. She described M as thoughtful, articulate and mature for her age. She seemed to consider her responses before providing them to Ms Houghton and explained the reasons for her views. M said that she did not want to go back to Australia at all. She said she loved her current living arrangement and she felt, in leaving Australia for New Zealand, she had left “years of isolation”. She felt that she had no friends in her class at her old school, which had added to her feelings of isolation. She did not want to return to her old school, described it as an Islamic school, where she was subjected to very strict but pointless rules. She said her father hated her mother’s family, that he would say bad things about them. That, and the life her father insisted they all lead, had made her feel very isolated.

• [90] She told Ms Houghton she very much wanted to stay in New Zealand. It was important for her to be able to see her big sister every morning. She felt in Auckland she had a “support network”. If she had to go back to Australia it would be “hard to cope” and she would feel “alone and isolated like before”. The most important people she relied upon for support, aside from her mother, were her aunt, her older sister and older brother, who all live in New Zealand. She said, in particular, her sister A helped her with what she referred to as “family issues”.

• [91] She told Ms Houghton she very much liked her second older brother, H, living with her. She said that when he lived in Australia with them, he was her main support. It was H who encouraged her to see a school counsellor in Australia. She said that had to be arranged secretly so her father did not know. She told Ms Houghton she is seeing a psychologist in New Zealand and found her very helpful in dealing with her emotions, understanding things and coping techniques.

• [92] She said to Ms Houghton that even if she were living separately from her father in Australia, she would feel as if she was living back with him again, just not in the same physical environment. She used the word “horrible” to describe how it would feel if she were to return to Australia. She felt her father had not allowed her to grow. She told Ms Houghton of physical discipline and verbal abuse by her father, which she said happened often.
• [93] Although she had seen the school counsellor at her previous school, she did not find her much help. In Australia she had not been able to see a psychologist, as she needed a referral and her father was her doctor. Ms Houghton asked M about her subjective “happiness” scale going from zero (the least happy) up to 100. M said that if she had to return to Australia she would be a “zero out of 100” on that scale. She said that if she was in Australia and not living with her father, there would not be any physical abuse, but that would be the only difference with respect to her feelings of isolation and unhappiness.

• [94] She said that now she is away from Australia and living with her two older siblings, she could concentrate in class and did not think about family issues in school.

General practitioner letter – 25 October 2019 regarding M

• [95] Dr Husain is a general practitioner who has practised medicine for over 20 years, with 15 years in general practice in Auckland. She is the family GP for all five children in New Zealand. M became her patient in August 2019. On her initial consultation with Dr Husain, M described how hard she had found her separation from her older brother and sister, H and A, over the preceding six months. M also told Dr Husain that she had used a box cutter, found while arranging her sister’s clothes in Australia, to cut herself on her left arm just below the elbow. Dr Husain said that since arriving in New Zealand, M had enrolled at high school and appeared happily participating in activities.

• [96] Her opinion was that M (and N and S) presented to her with a range of physiological and psychological needs. M showed self-harm tendencies, repressed anger and severe progressive scoliosis. She said M has since started physiotherapy and is on a waiting list for a specialist appointment for a spine review, with plans for corrective surgery.

Doctor Farnsworth-Grodd – affidavit 30 October 2019 regarding M

• [97] Dr Farnsworth-Grodd is a registered clinical psychologist who currently works in private practice. She also works part-time for the Waitemata District Health Board as a professional lead/clinical advisor for community alcohol and drug services. She

holds a Doctor of Clinical Psychology degree from the University of Auckland, along with other professional degrees and diplomas. She notes that her affidavit is not a s 133 report or other court-ordered report. It is a summary of sessions provided to M (and N) from July 2019 to October 2019.

• [98] M and N saw Dr Farnsworth-Grodd at the request of their mother who was said to have had concerns that M was “not sharing her feelings” and had self-harmed earlier in the year. In relation to N, the mother was concerned that he was “shutting down”.

• [99] Dr Farnsworth-Grodd said she received instructions from counsel for the mother on 21 October 2019 to provide a summary of her conclusions, having seen M and N after their arrival in New Zealand. She was asked to include any views M and N had expressed to her regarding a possible return to Australia and the potential impact this move would have on them. The sources Dr Farnsworth-Grodd relied on were a family session on 27 July 2019 and five individual sessions with M between 17 August and 19 October 2019 (and two individual sessions with N on 31 August and 12 October 2019). I note that these sessions were all prior to either M or N being aware of the undertakings given by their father.

• [100] Dr Farnsworth-Grodd said M presented as a bright and articulate young woman who was keen to share her concerns. She was adamant she would not return to Australia and described the abusive life she experienced there. M said she struggled with recurring dreams of domestic violence by her father.

• [101] M self-harmed on 26 February 2019. She was aware her older sister, A, struggled with her mental health and M had found a box cutter hidden by her sister. She said her father showed no concern and removed the door from her bedroom. M reflected on who supported her and said she felt close to her older siblings. A is viewed as a “refuge” and someone she can talk to and who understands her. H is seen as a calming influence and also someone she can talk to.

• [102] M was adamant she did not want to return to family life in Australia, nor her former school. She enjoyed family support here and her New Zealand school. Dr Farnsworth-Grodd was of the opinion that M presented with psychological effects

of trauma having experienced domestic violence in her family life in Australia. Her eating issues and self-harm incident indicated her vulnerability and need for a nurturing family home environment. Dr Farnsworth-Grodd concluded:

A return to Australia could trigger further self-harm attempts. It is critical for [M’s] recovery from the psychological effects of trauma, and to prevent future self-harm attempts, that she remain in a supportive, loving and caring family home environment. This is provided by her New Zealand home where her older siblings play a pivotal role in providing support and understanding. These siblings are notable for their cohesion, love and support of each other.

Lawyer for the children –2 December 2019 report regarding M

• [103] Ms Houghton recorded that, at the start of her meeting with M on 2 December 2019, she repeated the explanation she had given M when she met with M in September 2019. That is, Ms Houghton distinguished between longer term decisions about M’s living arrangements and this proceeding about whether they return to Australia or remain in New Zealand while those longer term decisions were made. Ms Houghton said M again confirmed she understood the distinction.

• [104] Ms Houghton made M aware of the undertakings her father had recently given. M was not aware of that before meeting with Ms Houghton and told her that she was pleasantly surprised and pleased that her father had made that offer. However, she said she believed her father would be able to find a way around his undertakings if they returned to Australia. She told Ms Houghton that made a “tiny” bit of difference and she would feel a little less worried about returning to Australia if her father abided by his undertakings.

• [105] M said she would feel better knowing she was going back to a home she knew but then said it held a lot of bad memories which would be “gushing in their minds, making things worse”.

• [106] M again said she would not return to her previous school if she returned to Australia. She said that if she returned to Australia she would make sure she had regular calls and Facetime with H and A, but it would not be the same as seeing them. M said she used A as her main person to “rant” to, which she thought she did every day and often sought advice from her. She said she was getting on better with her

mother and that her mother was becoming an increasingly important person for her to be able to talk to. M said if she had to return to Australia, she would have to assume a lot of responsibility as she would be the eldest child.

• [107] Ms Houghton described a “happiness scale” of one to 10 and M said she would be a 10 out of 10 happy if she could stay in New Zealand and a two or three out of 10 if she had to return to Australia. Ms Houghton discussed with M what she might do to help herself if she returned to Australia. She said her mother would probably take them to a GP her mother knows and get a referral to someone like Dr Farnsworth- Grodd for her to talk to. M said she still saw Dr Farnsworth-Grodd and found those meetings helpful.

• [108] She said there would be one friend in Australia who would be pleased to see her but that friendship was not close anymore. She expressed concern about money for the family if they returned. She said she would not want to see her father at all because of how he had behaved when they all lived together.

• [109] In summary, in relation to M, Ms Houghton said that on both occasions she had met with her, she had clearly told her that she did not want to return to Australia. M said that objection stood whether or not she has any contact at all with her father. Ms Houghton said that while M’s objection in part seemed to be based upon her criticisms of life while living with her father, it also appeared to be based upon the levels of support and comfort she says she feels being near her family members in Auckland, particularly A and H, and her dislike of her school in Australia. M (and also

N) did not express any criticism to Ms Houghton of the standard of care their mother is currently providing to them, nor did M (or N) discuss the mother in unfavourable terms.

Lawyer for the children - 9 June 2020 report regarding M

• [110] This report was prepared by lawyer for the children to provide an update to this Court on the current views of M and N.

• [111] M told Ms Houghton of having nightmares about her uncle, her father or her brother appearing in Auckland and of running away from them. M advised

Ms Houghton that she had had this type of nightmare recently, as well as having them in the past since coming to New Zealand. M said that if the Court decided she needed to return to Australia, she would find that “devastating”. It would be “worse than sad”. The “worst thing” for her would be having to live separately from her sister and brother, her cousins, her aunt and her grandparents. She said that she would have to be forced to return to Australia and that if she were in Australia she would “feel alone, as if there was no-one there for her”. She repeated how much she valued living with her older brother H and her older sister A.

• [112] M told Ms Houghton that whether or not her father was in the home or living nearby, or even in the same State, she did not want to be in Australia. M asked Ms Houghton to tell the Court she felt “that it was crazy for any adults to consider sending her back to Australia”. M explained that she felt like she had escaped prison and she found it unbelievable that a possible return to Australia was even being considered for her. She anticipated, if she did have to return, she would feel stuck, lonely, that she would be in an awful place, and back in prison.

• [113] M said that another negative about being in Australia would be the stress she would feel and the worry that she would feel and have to live with every day. She anticipated she would feel scared “24/7” in Australia and would worry that she was being watched, even if they were living in a different state from her father. She thought she would always feel scared and on alert. She gave an example of walking to school and expected, on every occasion, she would feel worried that her father, brother or uncle would see her and approach her. She had a fear that her father would find a way to get to her. She said she believed that her father, irrespective of any Court orders or undertakings given, would find a way to learn what school she was at and to find a way to, for example, walk past and greet her. She said that if that happened she would feel threatened.

• [114] M asked Ms Houghton to advise the Court that she does not regard her father as a good person because he mistreated her, mistreated her mother, mistreated her family and those who loved him. She does not trust her father.
• [115] On a happiness scale, overall she gave her life and happiness a 10 out of 10 score. Asked how she anticipated she would rate her happiness if she returned to Australia, M responded by asking if there were negative numbers on the scale. If not, M said she would definitely be a zero out of 10.

Lawyer for the children - 30 September 2019 report regarding N

• [116] I now address the reports in relation to N.

• [117] Ms Houghton similarly made it clear to N that the proceeding before the Court was not about where they live on a long-term basis, but whether they return to Australia or remain in New Zealand while decisions were made regarding any longer term arrangements. She said that N understood that.

• [118] N told Ms Houghton he did not want to return to Australia and he maintained that view throughout their discussion. He was critical of his school in Australia and said the school he was attending in New Zealand was far better. He said he felt more “naturally comfortable” in New Zealand. He said one of the really good things about being in New Zealand was the support he had from his older brother, H. He said he can rely on H and he respects H a lot. He said the other very important people who support him are his mother, his aunt and his sisters.

• [119] He said that when he lived in Australia he felt as if he was under surveillance. He said he had hardly any choices and he did not feel free. When his older brother and sister left Australia for New Zealand, he felt happy for them. N said, “I say ‘no’ to Australia”. He said his parents should be able to resolve their disputes while he lived in New Zealand. He said he was “not interested” in going to Australia. He said he was “all settled” in New Zealand and did not want to return to Australia. He could not understand why anyone would think that was good for him.

• [120] When asked how he would feel if he needed to return to Australia, he said he would feel “a lot less secure, uncomfortable”. He said he wanted “definitely to stay right here”. He said “New Zealand is better for me”. He slept better here. He said the family members he lives with understand and can help him. He said he is having more “temper tantrums” but “when he gets cross, they help him”. N said he did not

understand why he should have to go back to Australia. The two main reasons he wanted to stay in New Zealand were “support and freedom”.

• [121] N described his father as an angry and aggressive person. N said he would feel “fearful and afraid” if he saw his father, saying that when his father gets angry, he is a very aggressive person.

• [122] Ms Houghton described N as articulate and thoughtful. He was able to explain to her the reasons for his views. He appeared to quietly consider his answers and comments before responding to her.

General practitioner letter – 25 October 2019 regarding N

• [123] N became Dr Husain’s patient in August 2019. Dr Husain describes him then as withdrawn, moody/volatile and underweight. He avoided eye contact and was reluctant to engage. He reported to her that the school he was attending was a huge change from his experience in Australia. Dr Husain says N has increased his after school activities. N has become more engaged with his health and wellbeing, while enjoying a close and supportive relationship with his older brother, H, and his first cousins.

Dr Farnsworth-Grodd – affidavit 30 October 2019 regarding N

• [124] Dr Farnsworth-Grodd said on first impression N was an articulate young man who was reticent to speak a lot with his siblings present. Family members stated that he had been irritable and angry on a number of occasions when having to wait or accommodate others’ needs.

• [125] She says N experienced home life in Australia as very difficult as his father was abusive, controlling and manipulative. Dr Farnsworth-Grodd said N fears a possible return to Australia. “Returning to Australia would be very bad”, “he’d act a kind father but he won’t change”.

• [126] N told her he felt isolated in Australia. But in New Zealand he is enjoys participating in a number of new interests and sporting activities. He described his

mother as “looking out for him”, “she’s kind, and cares, she always tries to help”. She said N is very close to his older family members. In particular, his older brother H was described as “calming” and “someone to talk to”, “He has kept us together, and I can turn to him at any time I need”. N expressed his gratitude for H’s help with school work and for being there when he or others need help or support.

• [127] Dr Farnsworth-Grodd’s opinion was that N presented with symptoms of depression. She had concern for his mood and the impact of trauma from experiencing family violence. She recommended further assessment through the Kari Centre and for the family to foster meaningful interaction time. She said that when she saw N on 12 October 2019, there was a noticeable shift in his engagement (improved eye contact), willingness and openness to share, as well as increased energy and enthusiasm for his interests, indicating an improvement in his mood. She attributes these changes to a caring and supportive family and school environment. She concluded:

It is critical for [N’s] stability of mood and recovery from experiencing trauma that he remain in a family home environment that is supportive, loving and caring. This is provided for him in New Zealand. The extent to which [N] relies on his older siblings, especially H, is also important to N’s emotional stability. He sees H as playing a pivotal role in providing calm and an understanding ear to his concerns. He thinks a life without living close to his older siblings in New Zealand would be “very bad”, “terrible”.

Lawyer for the children– 2 December 2019 report regarding N

• [128] Ms Houghton met with N at his school. She repeated her explanation to him about the scope of this proceeding. She considered he understood it. She also made N aware of the undertakings given by his father. N responded that his father might not stick to his word and might be nearby or might come back or would find a way to get around the agreement.

• [129] Ms Houghton said that N maintained a clear objection to returning to Australia, even on the basis that he did not live with his father and even if it could be guaranteed that his father did not have contact with him or his mother. He said there was nothing good, “Not one good thing” about going back to Australia. He said he would feel pretty sad living somewhere without H and A. He said his parents, or the adults, should let him stay in New Zealand while everything was resolved, rather than having to go

back to Australia. He explained that just because you are born in a country and have lived in a country, it does not mean it is better for you there. He could not think of anything he or anyone could do to assist him, if he had to return to Australia. He simply did not want to return at all.

Lawyer for the children – 9 June 2020 report regarding N

• [130] N repeated that in his view there would be nothing good about returning to Australia. He explained that returning to Australia would make things a lot harder for him. He anticipated that he would always feel anxious and he used the phrase “always on caution for Dad”, explaining that he would constantly be on the lookout for his father and would not want to see him. He thought he would have to be very cautious and it would be a very stressful way to live.

• [131] He said he much preferred life in New Zealand, his neighbourhood, living with his family, the school he attended, his friends. He said he had spoken to a counsellor from Family Works who helped him “process things and feelings”.

• [132] He explained the “worst things” about going back to Australia would be not having his brother and sister to support him and “probably not having much money for the family”. In New Zealand he spends “lots of time every day” with his brother and sister and in particular his older brother. N also said he would not want to see his oldest brother who lives in Australia. He felt that brother had been more physical towards family members than even his father.

• [133] Counsel sought a response on her zero to 10 happiness scale. N felt his life was currently a seven to eight out of 10. He thought if he returned to Australia his life would be two to four out of 10.

Lawyer for the children – 30 September 2019 report regarding S

• [134] Ms Houghton took the view, which she communicated to counsel, that she should not meet with S at that point due to his young age and the fact that the proceeding also related to two of his older siblings.

Lawyer for the children – 2 December 2019 report regarding S

• [135] Ms Houghton reported that she met S at his day care centre. She said he appeared quiet and reserved when she was present. He was sitting with a teacher, with other children playing nearby. He was not talkative but responded quietly and only briefly to direct questions and comments from the teacher and only occasionally responded to Ms Houghton. She described him as being reserved and appeared to want to stay near his teacher. Due to his demeanour and young age, Ms Houghton decided it was not appropriate for her to attempt to meet him on his own, nor to ask him questions relating to the issues before the Court. She said his two older siblings had expressed clear views to her and it had not been suggested by either party that S should be separated from M and N and/or his mother as a consequence of the determination of the proceeding.

Lawyer for the children – 9 June 2020 report regarding S

• [136] Ms Houghton met with S in her chambers, on his own, on 8 June 2020. She said he appeared relaxed and very talkative. He had brought some photographs of himself and of some family members to show her and a favourite toy. When she attempted to engage him in any conversation regarding Australia, the home he lived in Australia, his father and such topics, he would not engage but on each occasion reverted to talking about day to day activities.

• [137] Ms Houghton suggested that, having regard to his young age, it was not surprising that S was able to talk happily about immediate day to day matters, but not to discuss matters relating to the issues before the Court.

Further background – H and A

• [138] Although H and A, the two older children who are in New Zealand, are not part of the application, it is necessary to mention them, as they become relevant (on the mother’s case) in relation to both the child objection and grave risk defences.

• [139] The mother says H and A, who came to New Zealand to attend university at the end of 2018/beginning of 2019, did so to escape their father. The 18-year-old

daughter, A, has severe mental health problems, which the mother believes were largely caused and exacerbated by the violence and abusive behaviour perpetuated by the father on the family. The mother says noticeable problems began for A in 2016 when she began to self-harm generally by way of cutting herself. The mother says A begged her not to tell the father as she feared his anger and violence. In February 2018, A attempted to kill herself by taking an overdose of paracetamol tablets. A called the suicide helpline and was hospitalised for approximately 10 to 14 days.

• [140] In around July 2018, A confided in a friend at school her intention and plans to take her own life. The friend informed the school and A’s parents were contacted. They found and confiscated a cache of paracetamol. The mother says at this point A’s self-harming reached new levels and she had taken to cutting her arms and other parts of her body with box cutters. The mother says she was very worried but the father would not allow her to seek external psychological support for A.

• [141] Towards the end of 2018, A told her social worker that she had a plan and did not intend to see the new year. A was then admitted to hospital. The mother says A was in a very poor mental state and she begged her mother and sister to come and help. She says she knew A had to leave the violent and controlling environment created by the father if she was to have a chance to survive and get better. A told her psychiatry team she wished to be discharged to the care of her grandmother and aunt and intended to go to New Zealand and live with her grandparents. The mother says A refused to be discharged to the care of her father and did not want to remain in Australia.

• [142] The mother says that in New Zealand A’s mental health slowly began to improve but A had considerable concern for M, N and S in Australia. A stayed in close contact with M in Australia. However, the visits by the father, his brother and the son I, to New Zealand, at the end of July 2019, put stress on A. This led to a significant deterioration in her mental health. She started self-harming again and made another suicide attempt on 13 August 2019. But the mother says A is in a “significantly better space now”.

• [143] The father acknowledges A suffers from mental health issues. He says it is depression. He says the mother hid A’s self-harming behaviour from him. He says

he was involved in her medications but in doing so was following instructions from her psychiatrist. He also recommended she see a lady doctor as he was her father and thought perhaps she would be more comfortable seeing a female doctor who was not related. He says A is very close to her older brother H, and A thought it would be a good opportunity to accompany her brother and study at the same university. The father says he supported A in this decision as he considered she would benefit from “the change in the atmosphere” and environment.

• [144] He denies any contribution on his part to A’s mental health issues. He says the mother’s family have a history of mental illness and he has personally counselled some of them over the years. He also notes the mother attempted self-harm in 2014 by cutting her forearm.

• [145] In relation to H, the mother says that being one of the older children he suffered many beatings at the hands of the father. Throughout his life in Australia, he was repeatedly picked on by the father. She says H also experienced extreme pressure from his father to achieve academically. He came to New Zealand as a way of getting out of the family situation. She says he did not do so as an easier pathway into a specialist course here.

• [146] She says H has now described having had suicidal ideation while living in Australia, but he stayed quiet about it so as not to burden her. Since living in New Zealand, and seeing a psychologist, H has opened up a lot more.

• [147] The father emphatically denies the accusations that he physically and mentally abused H. He says H is a gifted and ambitious young man. When H was offered a place at university, the father recalls H telling him that it had always been H’s dream to enrol in a particular specialist course. The father says he encouraged H to do so if the opportunity arose. However, H’s results in Australia were not high enough and he came to New Zealand to take advantage of the possibility of entry into the specialist course here based on his mother’s heritage on the New Zealand side of her family. The oldest son, I, gives similar evidence to the father on this issue. I says his father fully supported both H and A in their decisions to study in New Zealand.

Discussion

• [148] Before I address the issue of the weight to be given to the views of M and N, I express my view that the father was correct not to challenge the first two steps of the test.³² The evidence clearly establishes that both M and N object to returning to Australia and, over the period of time that their views were sought from September 2019 to June 2020, M was aged 14 years to almost 15 years and N was aged 13 years to 13.5 years. The evidence also establishes that they were mature for their years. The Judge referred to relevant matters on this issue as set out in [46] above. Both M and N have attained an age and maturity in which it was appropriate to give weight to the views of each of them.

• [149] I now turn to address each of the factors which Ms Crawshaw submits the Judge omitted to consider and which she says should have been taken into account in order to determine the weight to be given to their views.

• [150] First, that the basis for the children’s objections was focused on a return to their previous family life with their father, and not a return to Australia as such. Ms Crawshaw submits there was no analysis of the extent to which those objections would be mitigated by a return to Australia that did not involve a return to their previous family environment and the day to day care of the father. In this regard, she draws particular attention to the father’s undertakings. Ms Crawshaw also says there is no suggestion that the mother would not be returning to Australia with the children if their return were ordered.

• [151] I accept Ms Crawshaw’s submission only to the extent that some of the comments by M and N related to their former life with their father and comments about the school they had attended. However, the objections by both M and N go far beyond that. By the time of the second interview with lawyer for the children, the father had given his undertakings and the children were told about those. Notwithstanding those undertakings, they each spoke of a generalised fear of being in the same country as their father, even if they were not living with him.

32. The Judge was also clearly correct in not considering this defence for S who was too young to express a view.

• [152] In the face of the father’s denials, this Court is not in a position to make definitive findings about whether the father did in fact physically and mentally abuse his children. However, both M and N say he did and they both express a fear that he will find a way around his undertakings, either directly or through their oldest brother. M maintains this position even if the Court were to make orders to that effect. In other words, undertakings and Court orders are one thing, but their fears remain.

• [153] Further, an important reason given by both M and N was that a return to Australia would result in their separation from H and A, both of whom provide significant support to them on a daily basis.

• [154] Finally, in response to Ms Crawshaw’s submission that there is no suggestion that the mother would not be returning to Australia with the children if their return were ordered, Mr Ashmore was clear in his oral submissions that the mother has never said she would return with the children.

• [155] I therefore do not agree that the objections by M and N were largely focused on a return to their former family life. That was certainly part of the picture but their concerns went beyond that. I also do not consider that the undertakings will ameliorate fears expressed by M and N, having regard to their perception that the undertakings (or any Court order, in the case of M) would not be adhered to by their father.

• [156] Ms Crawshaw next submits there was an absence of any clear contemporaneous evidence supporting the assertion either M or N was unhappy in Australia before their removal to New Zealand.

• [157] There is some contemporaneous evidence for M. It is apparent that M was seeing a counsellor at her school before coming to New Zealand. A counselling referral form dated 30 January 2019 records that the reason for referral was “emotional/psychological” and that it was the mother who made the referral. The referral form further records “counselling for medical condition; [back] brace; possible bullying; anxiety”. It also states that the mother reported “no further concerns”. The counselling notes record attendances from February 2019 to June 2019. A note from 22 February 2019 indicates that A had telephoned from New Zealand saying she was

worried about her sister. A further note of 5 April 2019 records that M is “feeling very happy with progress at the moment”.

• [158] I accept that the contemporaneous evidence is limited. However the mother and M and N describe what they say was the father’s controlling behaviour. That is arguably an explanation for the absence of any further contemporaneous evidence. Nevertheless, I am not able to make a finding on that alleged aspect of the father’s behaviour given he strongly disputes that was the case.

• [159] I come back to what M and N have said. They both strongly assert that they were very unhappy in Australia before being brought to New Zealand. In the absence of involvement of State agencies, it might be asked what actual contemporaneous evidence could be produced on this issue.

• [160] I accept Ms Crawshaw’s submission that this issue is one that goes into the mix. But it is just one factor that the Court takes into account.

• [161] Ms Crawshaw next submits that the Court needs to consider the evidence that both M and N were doing well at school in Australia.

• [162] In the reports before the Court for semester 1 in 2019, M was described as a capable student, very polite, humble, mature and an enthusiastic member of the class. N was described as a cooperative and reliable student who contributed well to class activities and had a positive attitude towards learning during Islamic Studies lessons.

• [163] I acknowledge progress at school may be taken into account. But I also note it might be said that favourable progress by children at school neither proves nor disproves that abuse has occurred.

• [164] Next, Ms Crawshaw refers to the timeframe during which M and N’s objections are said to have crystallised. She notes that at the time they met with Ms Houghton, they had been living in New Zealand for approximately two months. The first report of lawyer for the children records strong views about M and N not wanting to return to Australia and statements that they had been unhappy there.

Ms Crawshaw submits that such strong views, after only a couple of months, should have been a matter for concern and careful consideration by the Judge.

• [165] I do not see it that way. Both M and N said they were living in an abusive and unhappy situation. It is to be expected in that case that they would prefer to live elsewhere from the very day they left such a situation. Having left a home environment within which they said they were abused and unhappy, and having moved to a living situation with extended family and their older siblings, this is an obvious explanation for their immediate preference to remain in New Zealand.

• [166] Next, Ms Crawshaw submits this is clearly a case in which there is a risk of undue influence on the children’s views by the mother and/or other members of their extended maternal family. Ms Crawshaw refers to the father’s opinion, in his affirmation of 22 November 2019, that from “Reading the Memorandum by the children’s lawyer, it is clear to me how influencing and manipulating the environment is around them ... I was shocked but not surprised by what they have said to the child’s lawyer as I know they have been heavily influenced by the Respondent and her family”.

• [167] Ms Crawshaw submits, with the children being surrounded by maternal family, the Court needed to address the issue of possible influence. She submits what was required was some assessment of the child’s ability to have formed his or her own ideas, independent of the adults around them.³³ That did not happen.

• [168] There is some evidence which indicates that M may have held a different view about her father. On 14 May 2019, the school counsellor’s notes record, “[M] mentioned that she would like to move to NZ but that it might mean losing her dad and older brother”.

• [169] There is also the following:

She told me that she was hurting because she is going through a tough time with my father.

And that i made her feel sad and that i didnt care.

³³ Citing Hollins v Crozier [2000] NZFLR 775 (FC) at 789.

Cause i was celebrating father’s day [first Sunday in September] And i was like

But like

Its my father

On Father’s day.

Meaning i will be the lonely on [sic] celebrating fathers day without a father

...

• [170] As to her views about her mother, there are internet chats which the father says the oldest son, I, had come across between M and her friend who lives in Sydney. In one M states: “The reason why i cut myself before was to get my mother’s attention”. She then says: “Im so done with her. She is just like Baba [the father]”.

• [171] Lawyer for the children commented on the issue of possible undue influence. In referring to what she says on this issue, I am mindful, of course, that Ms Houghton was not a witness, least of all an expert witness. In her first report of 30 September 2019, in relation to M, Ms Houghton said she formed the view that M strongly objected to returning to Australia. She said she appeared to be mature and articulate and to give reasonable explanations for her views. She said the manner in which M’s views were expressed to her did not, on the face of it, indicate to her that she had been inappropriately influenced by anyone in forming those views. Ms Houghton made a similar comment in relation to N.

• [172] In her 2 December 2019 report, in relation to M, Ms Houghton said that M told her she did not hear discussions around the home regarding these proceedings but knew her mother was tired and there were lawyers involved. M told Ms Houghton she felt others in the house tried to protect her and did not want her to worry about these things and she did not feel like anyone was trying to influence what she was thinking about a return and her father.

• [173] In her 2 December 2019 report in relation to N, Ms Houghton said that there did not appear to be any evidence of undue influence having been borne upon him.
• [174] Ms Houghton nevertheless noted in her 2 December 2019 report that the Court needed to be mindful of the fact that both M and N were living with their mother and other members of the mother’s family, as well as two older siblings. All were likely to be averse to their returning to Australia and could be expected to hold unfavourable views of the father. Ms Houghton conceded it is likely, or at the very least possible, that their views on the children returning to Australia would be perceived by M and may have influenced the formulation of M’s own views. Ms Houghton concluded, however, that the views of both M and N had been expressed consistently and with reasoned explanation and she submitted there was no reason for the Court to hold any concern with respect to the autonomy and reasonableness of those views.

• [175] In her updating report of 9 June 2020, for this Court, Ms Houghton maintained her opinion that nothing either M or N said to her had been inappropriately influenced by anyone else.

• [176] I acknowledge that because M and N are living with the mother, it is perhaps predictable that they would have identified with her views also. Furthermore, they are both intelligent and would have appreciated the purpose of the interviews with lawyer for the children. It might be thought they would emphasise views likely to persuade a decision maker of the importance of their wish not to return to Australia. On the other hand, they are assessed as mature and intelligent. In other words, they are capable of presenting their own independent views to lawyer for the children.

• [177] The Court needs to look for evidence on this issue. In the absence of a s 133 report, there is the evidence from Dr Farnsworth-Grodd and the letter from Dr Husain. It was not part of Dr Farnsworth-Grodd’s brief to consider whether the views of M and N were genuinely their own views, or whether they had been shaped by undue influence from the mother or members of her family.

• [178] Nevertheless, her conclusions were clearly based on an acceptance of what M and N told her. I would have expected Dr Farnsworth-Grodd, as an experienced psychologist, to articulate any doubts about the authenticity of the children’s views in her conclusions and recommendations. It will be recalled that, in relation to M, she concluded that a return to Australia could trigger further self-harm attempts; and that

it was critical for her recovery from the psychological effects of trauma, and to prevent future self-harm attempts, that she remain in a supportive, loving and caring family home environment which is provided in New Zealand. There was a similar conclusion in relation to N.

• [179] In other words, Dr Farnsworth-Grodd’s report permits an inference that there has been no undue influence.

• [180] I also take into account the changes in the presentation of M and N as observed by Dr Husain. She said:

On first meeting with this remarkable group of siblings I was shocked at the consistent post-traumatic stress disorder, anxiety and depression present. They are all high achieving children who present with similar symptoms.

• [181] The letter was referring to all five children but M and N were included. Then, in relation to M and N specifically, the doctor said that their health had clearly improved during the time that they had been under her care.

• [182] In my view, Dr Husain’s evidence tends to suggest M and N are genuinely happy in New Zealand as evidenced by the improvement in their health. That allows an inference to be drawn that their expressed opinions about their contrasting life here, as against Australia, are genuine views and not as a result of any undue influence.

• [183] Overall I allow for the possibility of some influence. But as was the case in Thomas v Dean,³⁴ it is a question of degree. There are rational explanations for the views of M and N.

• [184] Ms Crawshaw refers to what she describes as the seeming involvement of M in the plan to relocate to New Zealand, and the impact that this would likely have had on her stated objections. In this regard, Ms Crawshaw refers to the report of the school counsellor following the holiday to New Zealand in April 2019. M was recorded as saying that she would like to move to New Zealand but that it might mean losing her

³⁴ Thomas v Dean [2019] NZFC 2180 at [41].

father and older brother. She is also said to have spoken about the pros and cons of moving to New Zealand.

• [185] I do not consider the allegation that M was involved in some sort of plan is supported by the evidence. This was not a case where the children were smuggled out of Australia. They came to New Zealand for a holiday and were retained here by the mother. In other words, there was no reason to involve M in some sort of subterfuge. That was not necessary in the context of a pre-arranged holiday away from Australia.

• [186] Ms Crawshaw refers to the undertakings given by the father and the effect of these on M’s objections. She submits that in the report of lawyer for the children of 2 December 2019, there was a significant softening of M’s objections. This was not acknowledged or taken into account by the Judge.

• [187] As is recorded in Ms Houghton’s report, M’s response in relation to the undertakings was that “... it made a ‘tiny’ bit of difference and she would feel a little less worried about returning to Australia if her father abided by that undertaking”. I do not consider that represents a significant shift in M’s view or any dilution of the strength of her objection. The continued strong objections are apparent from the contents of the more recent 9 June 2020 report.

• [188] Lastly, Ms Crawshaw refers to the Judge’s finding that “a major factor in the views expressed and the objection to return is the loss of relationship with their two older siblings who they are clearly very close to and are definite [sic] to remain attending [the tertiary institution] for a number of years to come”. Ms Crawshaw submits that in considering the relevance of this factor, and its prominence in the children’s objection, the Judge did not have any regard to the fact that H and A had moved from Australia to New Zealand some six months earlier. Further, Ms Crawshaw submits older siblings commonly live away from the family unit to study or travel and ultimately to live independently. Ms Crawshaw submits this should not have been a significant, let alone a pivotal, factor.

• [189] I do not accept that submission. It is the situation in which these three children find themselves that concerns the Court, rather than any general observation that older

children naturally move away from home. The evidence supports the importance of the two older children, H and A, in the lives of M and N. Indeed, Dr Farnsworth- Grodd refers to the loving and caring environment in M’s current New Zealand home “where her older siblings play a pivotal role in providing support and understanding”.

• [190] Dr Husain says:

Sending [M, N and S] to Australia would be separating the younger siblings from the older siblings and would cause a chain reaction of not only mental health breakdown in both groups but also deterioration of physical health.

• [191] While in that statement Dr Husain is also referring to the impact of separation on the two older children H and A (and I put that to one side), the observation applies to M and N (and S).

• [192] Drawing all these threads together and determining the weight to be attached to the views of M and N, I take into account the following. There are three lengthy reports from lawyer for the children setting out the views of M and N over a period of almost nine months. They understand that a return would not involve a return to their former life living with their father and going to the same school. They have nevertheless maintained their objection to returning to Australia. They have been consistent in their position that they do not wish to return. They are both at high school and are aged nearly 15 years and 13.5 years. They have provided explanations for their objections. The improvements in their physical and mental health provide support for their objections.

• [193] Having regard to their explanations, their ages, their reported maturity and intelligence and the strength of the language they have used, and notwithstanding some of the factors raised by Ms Crawshaw, I consider that considerable weight should be afforded to their objections. In using the term “considerable weight” I have made allowance for the possibility of some influence on the part of the mother, her family and the siblings in New Zealand. But, in the end, they are, on their face, genuine objections which are expressed in emphatic and unequivocal terms and for which there is a rational explanation.
• [194] I turn then to the second alleged error of law in relation to the child objection defence, namely that the Judge considered the exercise of his discretion discretely in respect of this defence alone. Mr Ashmore correctly concedes that the Judge misconstrued the task under s 106(1). The statutory discretion is to be exercised taking into account all relevant circumstances, including any other defences raised. The Judge therefore erred in law in considering his discretion in relation to this defence on its own.

• [195] I accept Ms Crawshaw’s submission that, in doing so, the Judge incorrectly approached the exercise on the basis that there was a presumption of upholding the objections of M and N in the absence of compelling reasons not to do so. The law does not provide for such presumption.³⁵ Rather, it is necessary to balance competing factors. I will undertake that exercise myself after considering the other two defences.

• [196] Finally, on the third alleged error of law in relation to the child objection defence, I accept that because the Judge erred in failing to consider the weight to be given to the objections by M and N, and because the three threshold steps are cumulative, there was consequently no basis for him to consider the exercise of his discretion in relation to this defence. But, having considered the question of weight myself, it is open to this Court to go on and consider the exercise of the discretion, which, as I have said, I will do after considering the other defences.

• [197] Despite the errors made by the Judge, he was nevertheless correct in finding the child objection defence was made out for M and N.

Second ground of appeal – consent/acquiescence defence – s 106(1)(b)(ii)

• [198] Ms Crawshaw submits the Judge’s finding that the father gave his consent to all three children remaining in New Zealand (and thus that the defence under s 106(1)(b)(ii) was made out) was wrong in fact and law. Ms Crawshaw submits that the Judge conflated the concepts of (and tests for) consent and acquiescence under s 106(1)(b)(ii) and wrongly approached the issue as one of consent, when it should have been acquiescence.

³⁵ Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 at [40].

• [199] She submits this led the Judge into error in the following ways. First, the Judge failed to have regard to the legal principles applicable to acquiescence; and, second, the mischaracterisation of the legal issue affected the Judge’s analysis of the evidence of the father’s conduct over the period between 20 July and 2 August 2019. By approaching the issue as one of consent, the Judge failed to properly consider the father’s subjective state of mind over that period.

• [200] But, in any event, Ms Crawshaw submits the Judge erred in finding that the father had, as a matter of fact, consented (and/or acquiesced) to the three children remaining in New Zealand. Such a finding was not open to the Judge on the evidence.

• [201] Mr Ashmore accepts that the Judge appeared to conflate or confuse the concept of consent and acquiescence. Mr Ashmore agrees that the father’s mental state (in the absence of deception) is the key issue. But, he submits, the mother provided strong evidence setting out her version of events, corroborated by other witnesses and her own actions at the time. He submits the Judge was faced with conflicting evidence between the parties and it was entirely open for the Judge to accept the mother’s version of events over the father’s, given what Mr Ashmore describes as corroboration of the mother’s version of events.

Legal principles

• [202] The parties are agreed on the legal principles that apply. They disagree on the application of those legal principles to the facts.

• [203] The test for acquiescence was summarised by Ronald Young J in

JHL v Secretary for Justice:³⁶

[24] New Zealand Courts have followed the House of Lords approach in Re H. The fundamental principle identified in Re H is that whether a parent has acquiesced in the removal or retention of a child will depend upon the state of mind of the parent who is said to have acquiesced. The burden of proving a parent has acquiesced is on the abducting parent on the balance of probabilities. The one exception to the rule expressed by their Lordships was:

There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the

³⁶ JHL v Secretary for Justice [2008] NZFLR 54 (HC).

other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.

...

[26] In Re H contains useful hints from their Lordships to trial Judges as to how to analyse evidence of parental intent in such circumstances. But such assistance should not be elevated to “principles”.

• [204] Those useful hints in re H are:³⁷

(a) The question whether the wronged parent has acquiesced in the removal or retention on the child depends upon his actual state of mind. The Court is primarily concerned, not with the question of the other parent’s perception of the applicant’s conduct, but with the question whether the applicant acquiesced in fact.

(b) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.

(c) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.

• [205] It is clear from JHL that the subjective intention of the wronged parent is a question of fact for the Court to determine in all the circumstances of the case. Conversations or events cannot be considered out of the overall context in which they take place. In Adams v Hood,³⁸ while communications between the parties indicated acquiescence, the communications as a whole could be characterised as attempts to secure a voluntary return. As a result, Judge Otene held there was no acquiescence.

³⁷ Re H (Minors)(Abduction: Acquiescence) [1997] UKHL 12; [1998] AC 72 (HL) at 90.

³⁸ Adams v Hood [2019] NZFC 6621.

• [206] However, it is also clear that acquiescence cannot be withdrawn once given. This is the essential difference between acquiescence and consent, namely that consent can be withdrawn at any time prior to departure from the usual country of residence provided it is communicated. As to timing, illustrating the distinction between the two concepts, Grice J said in O v R:³⁹

Although both concepts deal with the applicant’s acceptance of the removal or retention of the child, [t]here is a fundamental difference between consent and acquiescence. Consent as an argument applies to what occurs before the child is removed, whereas acquiescence relates to what occurs afterwards.

• [207] Finally, evidence of acquiescence “should be clear and compelling”.⁴⁰

Discussion

• [208] The mother relies on a telephone conversation with the father on 21 July 2019. She says there had been several calls between them that day. The mother says that during one of those telephone calls, the father said to her that they did not need lawyers and that all they do is use up money. She says he initially said she should stay at her parents’ home and look after the children, that the two of them would talk about how they could fix things up and that he would support the children and her in New Zealand, even if that required selling some of their properties.

• [209] Her evidence is that he further said they could review ongoing residence in New Zealand in six months and have a further discussion about that. The mother said she objected strongly to the idea that their stay was somehow time limited as she felt this indicated that the father did not understand the magnitude of the children’s mental health issues. The mother says the father accepted this and responded “Ok you and the children can stay in New Zealand indefinitely”. The mother says the father said that he would tell the children’s schools that the children were now permanently in New Zealand.

• [210] The mother says that after this phone call she told her family members that she had been given permission to stay in New Zealand. She also communicated with her

³⁹ O v R [2018] NZHC 2696 at [75].

⁴⁰ Clarke v Carson [1996] 1 NZLR 349 (HC) at 353.

Australian lawyers who sent a letter to the father, on 23 July 2019. The letter referred to the telephone conversation and went on to say the following:

• That you have expressed that you wish to reconcile with [your wife] but that she wishes to remain separated

• That you agree for the children to live in New Zealand with their Mother on a final basis

...

• [211] The mother says that, as a result of the telephone call, she enrolled M at a secondary school. She completed the application form on 22 July 2019. Two days later, on 24 July 2019, she also enrolled M at the same secondary school for the 2020 year.

• [212] The mother filed affidavits from her two sisters and her mother who all live in the same house as the mother. The evidence of each of them was that the mother told them on 21 July 2019 that the father had given permission for her to stay in New Zealand with the children. They all refer to the sense of relief and excitement in the household.

• [213] The mother also refers to the evidence of the father’s brother who filed an affidavit in support of the father. The brother refers to a conversation he had with the mother on 26 July 2019 after he and the oldest son, I, came to New Zealand. The brother says the reason for the trip was “to resolve the situation between my brother

... and his wife ...”. The brother says the conversation started with him telling the mother how she and his brother had been married for 22 years, that they had built a lifetime of memories together and now the house was all empty and full of sadness. He says the mother said to him:

It’s very, very simple and I’ve talked to [the father] about it, Inshallah ... ahh

... it isn’t easy, but hopefully, we can work through it. I’ve already told the lawyers who’ve [sic] I brought into the equation, that we’re working on a solution because that’s what we are doing!

• [214] The mother’s position is that the father then changed his mind and communicated this to her in a telephone conversation between the two of them on the evening of 27 July 2019. The mother says this was a long conversation. Her evidence

is that the father said he wanted her to come back to Australia, with the children, with his brother. She says she told him that there was no way they would just all go back like that with no warning or discussion. She says she asked him what had happened since their last conversation and why he had abandoned their prior agreement. She says the father stated that he was going to come and take them back to Australia.

• [215] Mr Ashmore submits the above evidence establishes the father acquiesced. He refers to the legal principle that once acquiescence has occurred it cannot be withdrawn. That was what the father purported to do in the telephone conversation on 27 July 2019.

• [216] The father’s evidence is that he “never consented, acquiesced, or [gave] any form of consent or approval whether express or implied for [the mother] to retain the children in New Zealand”. He refers to the phone call on 21 July 2019 setting out what he says was the content of the conversation, which does not include any acquiescence on his part.

• [217] He is supported in his evidence by the evidence of the oldest son, I, who says that on 20 July 2019 he received a text message from his mother informing him that she would not be returning to Australia. He says he first thought this was on a temporary basis but later on that day he found out from his mother that her intention was to live in New Zealand with his siblings permanently. I says, following this, both he and his father tried to understand why his mother had made this decision and desperately tried to convince her to return home to Australia.

• [218] He says there were several telephone conversations between his parents on Saturday 20 and Sunday 21 July 2019 during which he was present at home with his father. He recalls his father trying to reason with his mother in an endeavour to convince her to return to Australia. He says he clearly heard the conversations between his parents. He says at times he participated in those telephone conversations with his mother and tried to convince her to return to Australia. He says at no time during those telephone conversations did his father agree to his mother remaining in New Zealand with his siblings on a permanent basis. He recalls throughout the conversations his father emphatically refused the idea of their remaining in New Zealand and repeatedly

asked that they return to Australia so that his younger siblings could return to their school.

• [219] I says he also recalls his father speaking with the maternal grandfather on the telephone and asking him to assist with the situation. His father wanted the grandfather to convince the mother to return to Australia. I does not recall his father telling the grandfather, even obliquely, that he would consent for the mother and the children to remain in New Zealand permanently.

• [220] In my view, the Judge wrongly focused on a single phone call, that which occurred on 21 July 2019, instead of assessing the father’s conduct as a whole in the context of the abduction (retention). In focusing on the single phone call the Judge found that consent had been given, “as outlined by the respondent”. Having made that finding, the Judge then approached the subsequent actions of the father (and of the brother and the son, I) on the basis that “consent” had been given. Because of this approach, and instead of looking at all the relevant evidence on the issue, the Judge concluded that in the 27 July 2019 telephone conversation the father had changed his mind. In considering the issue in this way, and by addressing the issue as one of consent rather than acquiescence, the Judge failed to consider the subjective intention of the father as the wronged parent. He made his finding in relation to the 21 July 2019 phone call on the mother’s perception of the alleged acquiescence.

• [221] Approaching the issue correctly, in the round, I consider the following evidence is relevant and should have been taken into account by the Judge. The first time the father became aware of the mother’s decision to end their marriage and to remain in New Zealand with the three children was when on 20 July 2019 (after his son I spoke to him, having heard from his mother) he read a letter from the mother’s lawyers (dated 19 July 2010). That letter said that the lawyers were instructed to advise him that the mother and the children would not be returning to the matrimonial home or Australia. It further advised that the mother saw this as a formal separation from the father and the end of her marriage to him. The father says he was “gobsmacked” when he read the letter. He managed to speak to the mother on the phone and asked her why. He also said “You can’t just take the kids to New Zealand”. The father says following this phone call there were several text messages between I

and the mother, as I was desperately trying to understand the reason for his mother’s decision not to return.

• [222] There was then the telephone conversation on 21 July 2019. As already noted, the father denies he agreed to the children remaining in New Zealand. There is the supporting evidence of I in relation to this phone call.

• [223] There is also a reported comment by M in the report of lawyer for the children dated 30 September 2019. M refers to a telephone conversation (without stating the date) when she had been in an adjoining room and her father had been on the speaker phone during a call with her mother and grandfather. She says she thought her father had agreed to them staying in New Zealand but she said that the conversation had subsequently developed into an argument.

• [224] The evidence of the father’s older brother and oldest son I is that they travelled to New Zealand on 26 July 2019. The purpose of their coming to New Zealand was to try and work out a solution for the family.

• [225] On 27 July 2019, there was a family meeting in New Zealand attended by the father’s brother, the son I, the mother, her father, her brother and H, the older son living in New Zealand. The father says after that meeting he and the mother talked on the phone for more than one hour and each said how much they missed the other. The father says that following that conversation he booked a flight for himself and I to Auckland for 30 July 2019.

• [226] Before the brother and I returned to Australia, the mother gave them hand completed application forms for New Zealand citizenship and passports for the three children and asked for the forms to be signed by the father and returned to her. The father says during a phone call the mother asked him to sign the forms. The father says he did not do so.

• [227] The father then came to New Zealand himself with I on 30 July 2019. They stayed at a hotel. On 31 July 2019 the father asked I to go to the maternal grandparents’ house, taking with him gifts the father had brought from Australia. The

son later came back to the hotel where he and the father were staying, together with the maternal grandfather who warned the father that he was not welcome at their home. The following day the father was served with a Trespass Notice signed by the mother’s sister. He was therefore unable to see the mother or the children.

• [228] He returned to Sydney, sought legal advice and on 6 August 2019 his lawyers in Australia sent a letter to the mother’s lawyers in Australia stating that the father had never agreed for the children to live in New Zealand with the mother permanently. The letter concluded that unless the mother returned to Sydney by 4 pm on Friday 9 August 2019 with the children, they had instructions to take steps to have the children returned to Australia. Convention proceedings were issued on 12 August 2019.

• [229] I accept Ms Crawshaw’s submission that, when viewed as a whole, these events do not support the Judge’s finding that the father acquiesced to the children remaining in New Zealand on a permanent basis during the telephone conversation on 21 July 2019. I also agree that the Judge’s finding that “... the applicant understandably wanted in the first instance to placate and please the respondent and made a decision to accept the situation and give his consent” is not a correct finding when considered in the overall context in which that conversation occurred. The father had found out just the day before that his marriage of 22 years was over and his children were not returning to Australia. Ms Crawshaw submits the situation would have been “fraught and emotional”. I accept that. I also agree with the observation made by Judge Fleming in Akau v Tilo,⁴¹ that:

... clear and unequivocal conduct is not normally found where the conduct consists of passing remarks from a parent who has suffered the trauma of removal of the children and seeks contact.

• [230] The steps taken by the father following the phone call on 21 July 2019 do not suggest acquiescence. The Judge made the finding that:

The way the brother came over together with the oldest son was done in a secretive non-transparent way and the way that he advised her that he was going to come and take them back to Australia would have not occurred had

⁴¹ Akau v Tilo [2019] NZFC 5746 at [19].

there not been any prior agreement. It indicated an element of force and control.

• [231] I do not consider that finding was available on all of the evidence. It flowed from the Judge’s starting point that “consent” had been given by the father on 21 July 2019. Had the Judge taken into account all of the evidence, there is a logic in the statement by I that he travelled to New Zealand with his uncle, “to reason with my mother about the issues which led to her decision not to return to Australia”.

• [232] I consider the mother has failed to establish on the balance of probabilities that the father acquiesced in the three children remaining in New Zealand. That may have been the mother’s perception of what the father said in the 21 July 2019 phone call. But that is not the test. I do not consider the mother has established that the words or actions of the father clearly and unequivocally showed, and led her to believe, that the father was not asserting or going to assert his right to the summary return of the children. The evidence of the mother’s sisters and maternal grandmother, and the steps the mother took after the phone call, which the Judge relied on in finding consent, all flowed from the mother’s perception. It is effectively self-corroborating evidence on the part of the mother. In the absence of clear and compelling evidence of acquiescence on the part of the father, I consider the Judge erred in finding the defence under s 106(1)(b)(ii) for all three children had been made out.

Cross appeal – grave risk defence – s 106(1)(c)

• [233] It is convenient to consider the mother’s cross-appeal against the Judge’s finding that the grave risk defence was not made out for S (and the mother’s submission that it is made out for M and N – the Judge not having considered the defence for them) before I consider the third and final ground of appeal for the father in relation to the exercise of the discretion under s 106(1). A decision on the cross- appeal is necessary before considering the exercise of the discretion.

• [234] Mr Ashmore refers to the Judge’s comment that:

The inference I am invited to draw is that because of the parenting undertaken by [the father] particularly the issues faced by [A], I can draw the conclusion that these will equally apply to [S].

• [235] Mr Ashmore submits that this was never alleged in the Family Court. He says the issue raised by the mother was that the return of the children will result in separation of the siblings which, in this case, would be an intolerable situation in terms of s 106(1)(c)(ii). Mr Ashmore submits that the Judge did not turn to his mind to what the children would be at risk of. He acknowledges the Judge used the words “intolerable situation” but at no point did the Judge turn his mind to what the mother was alleging the intolerable situation would be.

• [236] In this Court Mr Ashmore makes it clear that the mother relies on s 106(1)(c)(ii), a grave risk that the children’s return would place them in an intolerable situation. She does not rely on s 106(1)(c)(i), a grave risk of physical or psychological harm.

• [237] Mr Ashmore submits the grave risk of the children being placed in an intolerable situation arises because:

(a) a return would create unbearable fear and anxiety in the children;

(b) a return would result in separation of the three younger children, who are the subject of these proceedings, from H and A and from other members of the mother’s family; and

(c) the effect of a return to Australia on the mother’s psychological wellbeing would have an impact on the children.

• [238] Ms Crawshaw submits that none of the factors above establishes there is a grave risk that the children would be placed in an intolerable situation. She refers to the high threshold required to establish this defence; that the father’s undertakings would mean that the children would not be living with him; that the circumstances in this case are far removed from the situation in LRR v COL where the Court of Appeal found this defence was established; that separation of siblings needs to be viewed in the context of H and A having already left home; and although the mother may be distressed and inconvenienced at being required to return to Australia, there are

already proceedings underway in the Family Court there (including her application for relocation to New Zealand) which can be dealt with quickly.

• [239] Ms Houghton submits in relation to M, that her negative views of Australia; her expressed views as to what it would feel like for her to have to be on “alert” and watching for her father combined with the mother’s evidence regarding M’s vulnerabilities; and M’s perception if returned, that, as a nearly 15 year old, her views have not been listened to, are sufficient to establish the grave risk of an intolerable situation for her.

• [240] For N, Ms Houghton does not frame her submission in such a direct way. She says the Court “will need to consider” whether making N return to Australia at the age of 13.5 years against his will; removing him from the support of his older brother; requiring him to leave his school and friends that he says he enjoys; and returning to a country where he says he experienced abuse; and where he feels he will always have to exercise caution and be on the lookout, will be placing him at grave risk of an intolerable situation.

• [241] As for S, Ms Houghton submits that the consequence of an order for return being made only for him is that he would return to Australia, presumably with the mother. His living situation will change from having lived with four older siblings, grandparents, and other family, as well as a move from his kindergarten. In those circumstances, Ms Houghton submits the Court needs to closely consider the mother’s mental health vulnerabilities and what the impact of such a situation is likely to be for her and how that will impact on S. She submits the Court must pay very close regard to the impact of the mother’s wellbeing upon S’s situation.⁴²

Legal principles

• [242] In HJ v Secretary for Justice,⁴³ the Court of Appeal stated:

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

⁴² Citing LRR v COL, above n 11.

⁴³ HJ v Secretary for Justice [2006] NZCA 400; (2006) 26 FRNZ 168 (CA) at [33].

because of judicial expectations that, in the normal course of events, the legal system of other countries will protect children from harm.

• [243] It is clear that the standard is high and stringently tested.⁴⁴

• [244] As to an intolerable situation, in H v H, Greig J held that the word “intolerable” means:⁴⁵

... something cannot be tolerated. It is not just a disruption or trauma, inconvenience, anger. It is something which must be of some lasting serious nature which cannot be tolerated.

• [245] That theme was echoed more recently in Quamus v Rowley where this Court considered whether the separation of a child from his mother, who was the primary caregiver, would amount to grave risk in circumstances where the mother claimed she would not be able to support herself financially upon return. The Court held:⁴⁶

No doubt [the child] would experience the inevitable stress of removal, which may be substantial and may have psychological effects as referred to by Elias J in Clarke v Carson. But, as is clear from that decision, stress of that kind is not of itself sufficient to meet the stringent standard in the Convention and the Act.

• [246] In LRR v COL the Court of Appeal considered the grave risk defence under the “intolerable situation” limb⁴⁷ and made eight observations about this defence/ exception:⁴⁸

(a) First, there is no need for any gloss on the language of the provision. It is narrowly framed. The terms “grave risk” and “intolerable situation” set a high threshold;⁴⁹

(b) Second, the Court must be satisfied that return would expose the child to a grave risk. This language requires something more than a substantial risk. It is a risk that deserves to be taken very seriously. The

⁴⁴ Clarke v Carson, above n 40, 353.

⁴⁵ H v H (1995) 13 FRNZ 498 (HC) at 504.

⁴⁶ Quamus v Rowley [2017] NZHC 2260 at [83].

⁴⁷ LRR v COL, above n 11.

48. At [87]-[100]. The eighth observation related to the discretion, which is discussed in the next part of this judgment.

⁴⁹ At [87].

assessment turns on both the likelihood of the risk eventuating and the seriousness of the harm if it does eventuate;⁵⁰

(c) Third, a situation is intolerable if it is a situation which this particular child in these particular circumstances should not be expected to tolerate;⁵¹

(d) Fourth, the inquiry looks to the future: to the situation as it would be if the child were to be returned immediately to the State of habitual residence. The Court is required to make a prediction, based on the evidence, about what may happen if the child is returned. Certainty is not required. The Court needs to be satisfied that there is a risk which warrants the description “grave”. Any protective measures that will reduce a risk that might otherwise exist on return are relevant;⁵²

(e) Fifth, it is not the Court’s role to judge the morality of the abductor’s actions. They are in any event irrelevant to the forward-looking inquiry;⁵³

(f) Sixth; the burden is on the person asserting the grave risk to establish that risk. The Court should apply the burden having regard to the timeframe involved and the ability of each party to provide proof of relevant matters;⁵⁴ and

(g) Seventh, although the question is whether there is a grave risk that return will place the child in an intolerable situation, the impact of return on the abducting parent may be relevant to an assessment of the impact of return on a child.

⁵⁰ At [88].

⁵¹ At [89].

⁵² At [90].

⁵³ At [91].

⁵⁴ At [92].

Discussion

• [247] It is necessary to consider this defence for each of the three children. Although the Judge only considered it in relation to the youngest, S, the mother relies on it for M and N as well. I will need to start afresh in relation to M and N.

• [248] First, M.

• [249] Ms Crawshaw refers to the undertakings by the father and emphasises that, if the children are returned, they will not be living with him. The undertakings have the force of a Court order. Further to those undertakings, the father has recently moved out of the family home.

• [250] I am mindful of what the Court of Appeal said in LRR v COL about the importance of considering whether courts in the requesting State can put in place protective measures to protect the child from a grave risk of an intolerable situation.⁵⁵ However, despite the undertakings, there is still M’s perception of what life will be like on her return. When M spoke to lawyer for the children on 9 June 2020, she spoke of not trusting her father, that he made her feel unsafe and expressed a concern that irrespective of any undertakings, he would find her and that she would feel threatened and that she would feel like she was in the “Lion’s Den”; that she would always feel scared and would worry that she was being watched. She said this would be the case even if she was in a different state from her father.

• [251] This is a young woman who, in early 2019, as described by her mother, began to show increasingly volatile and irrational mood swings. Then in March 2019 she started engaging in self-harm. The mother says the severity and complexity of M’s mental health needs are high and they remind her of A’s mental health history.

• [252] With that background there is the added effect on M of separation from H and

A. The mother expresses her fear that, if the children were to be returned to Australia, M’s mental health will deteriorate significantly. It would result in her being separated

⁵⁵ LRR v COL, above n 11 at [111] to [114].

from H, A and the extended maternal family. She says the newly established sense of peace and security will be destroyed and M will suffer greatly.

• [253] Ms Crawshaw again makes the submission, in the context of this defence, that H and A had already left Australia and moved to New Zealand. She submits, while it can no doubt be difficult for younger siblings, older siblings routinely live away from the family unit to study, travel and ultimately to establish independent lives, as was the case with H and A. She further submits that the relocation to another country of older independent children cannot be relied on as a basis for uplifting younger children to establish a new “family unit” in that other country. Ms Crawshaw submits, for similar reasons, that the mother’s evidence as to M’s relationship with her New Zealand based aunt must be given little, if any, weight.

• [254] As I said above, this Court is not concerned with what might be said to be the general position regarding older children leaving home. It is the lives of these particular children that have to be considered.

• [255] Further, it is not only the mother’s view as to the effect on M. There is supporting evidence. Dr Farnsworth-Grodd used strong language to explain the importance of M remaining in the environment provided by her New Zealand home for her recovery from the psychological effects of trauma and to prevent future self- harm events. Her older siblings play a “pivotal role” in providing support and understanding in that environment.

• [256] Dr Husain’s letter is expressed in similar terms. She said that, in her professional opinion, the impact of returning the children to Australia would be detrimental to their wellbeing. Separating the younger siblings from the older siblings would cause a chain reaction of not only mental health breakdown in both groups but also deterioration of physical health.

• [257] I am mindful that both Dr Farnsworth-Grodd and Dr Husain gave their opinions before the father’s undertakings were communicated. But that, in my view, does not detract from the validity of their opinions which place significant weight on separation from the older two siblings.
• [258] In my view, having regard to M’s mental health vulnerabilities, the evidence establishes there is a grave risk her mental (and physical) health will suffer, to the possible extent of further self-harm attempts. The fear and anxiety M would experience by being returned, and the resulting separation from the two older siblings, H and A, and members of the mother’s wider family, would place her in an intolerable situation.

• [259] It is clear that M is a fragile young woman. She views Australia as a stressful place simply by reason of her father’s presence and regardless of any undertakings by him or Court orders. Although Court orders may keep her physically safe, and although counselling would be available in Australia, I do not consider that these two things would adequately address her anxiety about return. What M expresses goes beyond the inevitable consequences and upheavals of a Court ordered return. It arises from what she reports as her life experiences. There is no suggestion her anxiety would dissipate over a short period.

• [260] There is the third factor that Mr Ashmore relies on, which is the effect of return on the mother’s psychological wellbeing and the consequential impact on M. The mother says if an order for return is made it will place her in an impossible position as she will have to choose between protecting the younger children in Australia, if they are returned, or supporting A in New Zealand during this difficult time. She says the children are intelligent and will be well aware of the impossible expectations return will place on the family. She also says that returning to Australia equates to disempowerment for her, fuelled by the lack of family support and the psychological assistance she requires during Family Court proceedings.

• [261] I do not consider these matters add in any material way to the first two of Mr Ashmore’s factors for M. Based on those two factors I find that the mother has made out the defence under s 106(1)(c)(ii) on the balance of probabilities for M.

• [262] I now turn to N.

• [263] First, there are his own views about his return. In the most recent report of lawyer for the children it is recorded that he said he would always anticipate feeling

anxious, using the phrase “always on caution for Dad”. He anticipated his family would have to limit where they went because they did not trust his father. He thought that would be a very stressful way to live.

• [264] The mother also expresses concerns about the effect on N if he were required to return. She says “N stopped bed-wetting from the first night we arrived in New Zealand”. She says, however, that during the father’s visit to New Zealand, and upon learning that the father wanted them to go back to Australia, N experienced nightmares and bed-wetting. She says this has now stopped.

• [265] She expresses the view (as she said for M) that N’s newly established sense of peace and security will be destroyed and he will suffer greatly. The mother’s concerns have support in the opinions of Dr Farnsworth-Grodd and Dr Husain. The former describes him as initially presenting with symptoms of depression. She says he was struggling with irritability and intermittent outbursts of anger. She says these are often indicative of depression symptoms in children rather than sadness. N also reported to her diminished interest in getting involved in activity and was having some sleep problems. He was underweight, and suffered from a lack of enthusiasm and low energy. However, when she saw him in October 2019, there was a noticeable shift in his engagement, his willingness and openness to share, as well as increased energy and enthusiasm for his interests.

• [266] There is also the effect on N of the separation from H and A and other members of his mother’s family. M told Ms Houghton that one of the worst things about moving to Australia would be that he would have to live without his big brother and sister. That concern is echoed by the mother and has support from Dr Farnsworth-Grodd and Dr Husain. The former uses strong language, as she did for M, in giving her view on this issue. She says it is critical for N’s stability of mood and recovery from experiencing trauma that he remain in a family home environment that is supportive, loving and caring. This is provided for him in New Zealand. The extent to which N relies on his older siblings, especially H, is also important to N’s emotional stability. N says H is playing a pivotal role in providing calm and an understanding ear to his concerns.
• [267] Dr Husain also described changes in N’s physical health and wellbeing since he has been in New Zealand. She refers to all five siblings in New Zealand drawing strength from each other and from the maternal family. She says they find hope, understanding and happiness in each other. She says sending the three children back would cause a chain reaction, not only of mental health breakdown in both groups, but also a deterioration of physical health.

• [268] The issue is whether these concerns are sufficient to reach the high bar to establish this defence or whether the concerns are simply part of the inevitable stress of removal, which may have a psychological effect but are insufficient to reach the stringent standard.

• [269] Like M, N presents with mental health vulnerabilities. Those vulnerabilities have not manifested in self-harm but, nevertheless, based on the opinions of both Dr Farnsworth-Grodd and Dr Husain, those vulnerabilities are not insignificant. What I have said in [259] above applies equally to N. Then there is the compounding effect of separation from H and A. In my view, a combination of the anxieties that N would face on return, and having regard to his physical and mental health vulnerabilities and the resulting effect of separation from H and A, would place N at grave risk of being in an intolerable situation. The grave risk is that both his mental and physical health will suffer to an extent beyond the effects to be expected if he is returned.

• [270] I find the defence under s 106(1)(c)(ii) is made out on the balance of probabilities in relation to N.

• [271] Finally S. At his age he has not expressed any views on returning to Australia. The mother says that, in Australia, S was subjected to an environment where he saw and heard loud, aggressive, violent voices, mean gestures and frightened siblings. The father has emphatically denied those allegations. But what the mother does go on to say is that, as at September 2019, and at the age of four years, S was delayed in his toilet training.

• [272] If S returned on his own (and there is no agreement on the three children staying together), he would be separated from all four siblings with whom he currently

lives. If there was an order for return of the three children, S would be separated from H and A. The mother says that S calls his oldest sister “my [A]”. The mother says S loves A and is very attached to her. She says he has a unique bond with her and in her view separation from A would be detrimental to his wellbeing.

• [273] S was not referred to Dr Farnsworth-Grodd but he is a patient of Dr Husain. She says that when she first met S at the age of four, he was wearing a nappy and had not completed toilet training. She says that since arriving in New Zealand he has used his interactions with his siblings and his mother to centre himself and had recently been able to complete toilet training (her report is dated 29 October 2019). She describes him as being very attached to his older sister A and older brother H. She says with his new found security in New Zealand, S had been able to start going to kindergarten and interacting with children his own age as an equal and with confidence. As with M and N, her view is that separating S from the two older siblings H and A would have a consequential effect on mental and physical health.

• [274] There is limited evidence as to the likely risks for S. But sending him back on his own would result in separation from his four older siblings and other members of the mother’s family with a consequential effect on his physical and mental health. I consider the mother’s mental health may well be a relevant factor if S were the only child to be returned. If that were to be the case then, and on the assumption that the mother returned with her youngest child, her difficult family situation has the potential to affect the one very young child who is with her.

• [275] She is clearly concerned about the vulnerabilities of each of the four older children in New Zealand. She would be apart from them. She has given evidence that in 2014 she was suicidal and she cut one of her arms on multiple occasions. I accept that her mental health and wellbeing is at risk of deteriorating if she were required to leave four children in New Zealand and to return to Australia with her youngest child where she would be living without the emotional support of her extended family. In those circumstances there is a risk the mother’s mental health will affect S.
• [276] If all three children were to be returned, the mother would not have the anxiety of being separated from M and N but there would still be the impact on S of being separated from H and A.

• [277] Whether S is returned on his own or together with M and N, I consider the evidence establishes there is a grave risk that S would be placed in an intolerable situation. The grave risk, as identified by Dr Husain, is the effects on S’s physical and mental health. She says the impact “would be detrimental” to his wellbeing. In other words the grave risk would eventuate. There is no suggestion that these would be short-term effects.

• [278] The Judge was therefore incorrect in finding that the grave risk defence was not made out for S (proceeding as he did on a basis not argued for by the mother).

• [279] I also find that this defence is made out for M and N, under s 106(1)(c)(ii).

Third ground of appeal – failure to properly exercise discretion under s 106(1)

• [280] Ms Crawshaw refers back to her previous submission under the first ground that the Judge erred in finding the defences of child objection and consent (acquiescence) made out. She submits the exercise of the Judge’s discretion was therefore wrong in law. Ms Crawshaw submits that even if this Court finds that the child objection defence is made out, the exercise of discretion in a case of a bare child objection is significantly different from a situation where multiple defences are made out. The weight to be given to the children’s objections is also a crucial factor to consider in any residual exercise of discretion.

• [281] Ms Crawshaw further submits that even if the Judge had been correct to find that the child objection and consent/acquiescence defence was made out, his approach to the exercise of discretion was wrong in the following respects: there was a failure to consider the weight to be given to the children’s objections; and there was a legally incorrect presumption that the children’s objections should be upheld in the absence of compelling reasons not to do so.
• [282] She submits the matters relied on by the Judge were exclusively welfare considerations. Further, two of the six factors concerned the two older children present in New Zealand who are not the subject of the application. Those issues should not have formed such a prominent part in the exercise of the discretion.

• [283] Finally, Ms Crawshaw submits the Judge failed to have regard to the following relevant considerations: the purpose of the Convention and its underlying rationale that welfare issues should normally be considered in the place of the child’s habitual residence; the mother’s retention of the children in New Zealand was wrongful; prior to the removal the mother had not taken any steps to obtain protection from the father’s alleged abuse; the weight to be given to the objections by M and N; the absence of any suggestion the mother will not return with the children to Australia if there is an order for their return; there are already parenting proceedings underway in Australia; and the undertakings given by the father to vacate the family home and provide financial support for the family. Ms Crawshaw concludes that had the Judge properly exercised his discretion an order for return would likely have been made.

• [284] Mr Ashmore acknowledges that the Judge’s treatment of discretion was “somewhat inadequate at times appearing to verge even on a presumption for retention”. He agrees that this Court is required to repeat the exercise and should do so in terms of Austin Nicholls.⁵⁶ Mr Ashmore submits the discretion will be applied differently depending on the defence established. In relation to the child objection defence, it will be a more traditional balancing exercise but the factors on which the children’s objection is based will be significant. In terms of acquiescence, Mr Ashmore submits it is difficult to imagine an order for return where that defence is established. As far as the grave risk of an intolerable situation defence, Mr Ashmore submits it is well established that when this defence is made out it would be a very rare case for the discretion to be exercised and an order for return made.

• [285] Ms Houghton submits that in considering the discretion, the Court will balance the considerations enshrined within the Convention of comity, deterrence and restoration of the status quo, as well as the nature of the defence, along with the welfare

⁵⁶ See Simpson v Hamilton, above n 18.

and best interests of these particular children. Ms Houghton further submits that when considering the objects and purpose of the Convention alongside the impact upon M and N of not being listened to, the Court, in exercising its discretion, should determine it is in the children’s best interests to remain in New Zealand.

Legal principles

• [286] Section 106(1) of the Act confers a discretion to refuse to make an order for the return of a child if any of paras (a)-(e) is satisfied. The discretion is not unfettered and must be “exercised in the context of the Convention, having regard in particular to what would give effect to the Convention’s purposes in relation to [s 106(1)]”.⁵⁷

• [287] The majority in the Supreme Court commented on the relationship between s 4 and the discretion saying:⁵⁸

[50] Hence, what is in the best interests of the particular child in terms of s 4(1) cannot be the only or indeed the dominant factor in the exercise of the s 106 discretion. To take that view would be to “limit” the discretion contrary to s 4(7). In particular, the best interests of the particular child must be capable of being outweighed by the interests of other children in Hague Convention terms, if to decline return would send the wrong message to potential abductors. As we will develop below, striking the right balance between the best interests of the child or children on the one hand, and the deterrent policy of the Convention on the other, lies at the heart of the exercise of the s 106(1)(a) discretion. Waite J put the point well in W v W (Child Abduction: Acquiescence) when he said that it was implicit in the general operation of the Convention that the objective of stability for the mass of children may have to be achieved at the price of tears in some individual cases.

(citations omitted)

• [288] It is necessary to tailor the exercise of the discretion to the particular purpose and requirements of the exception in issue.⁵⁹ The majority judgment states:

[39] It is desirable to enter a caveat at this point about the various grounds upon which an order for return may be refused. Statements in judgments or other writings about one ground should not be applied automatically or uncritically to another. General statements about these grounds, or exceptions as it may be convenient to call them, should be treated carefully, recognising their generality. They may not apply to all grounds and may need to be modified when a particular ground is being considered. When examining judgments and other publications it is important to be clear which particular

⁵⁷ Secretary for Justice v HJ, above n 9, at [136].

⁵⁸ At [50].

⁵⁹ At [39].

exception is being addressed. Each exception has its own features and the court’s approach must be tailored to the particular purpose and requirements of that exception.

• [289] For example, if a grave risk of an intolerable situation is made out, as observed by Baroness Hale in Re S:⁶⁰

... it is impossible to conceive of circumstances in which ... it would be a legitimate exercise of the discretion nevertheless to order the child’s return.

• [290] On the other hand, in relation to the child objection defence, the exercise will be a more traditional balancing one. In Re M, Baroness Hale observed: ⁶¹

These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child’s views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child’s objections, the extent to which they are “authentically her own” or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child’s objections should only prevail in the most exceptional circumstances.

• [291] In LRR v COL the eighth of the eight observations made by the Court of Appeal concerned the exercise of the discretion. The Court of Appeal referred to what was said by the majority of the Supreme Court in Secretary for Justice v HJ,⁶² at [50] (set out in [287] above) as obiter and also that it should be read in light of the warning given by the majority in [39] (set out at [288] above).⁶³ The Court of Appeal went on to say that, more generally, it had some reservations about the suggestion that where an exception is made out under s 106, the interests of the particular child may nonetheless give way to the goal of deterring potential abductors in the future.⁶⁴

60. Re S (A Child)(Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 AC 257 at [5]. Cited with approval in LRR v COL, above n 11, at [96].

⁶¹ Re M, above n 15, at [46].

⁶² Secretary for Justice v HJ, above n 9.

⁶³ LRR v COL, above n 11, at [98].

⁶⁴ At [99].

Discussion

• [292] The Judge approached the exercise of his discretion on the basis that the child objection defence was made out for M and N; that the consent defence was made out for all three children; and that the grave risk defence was not made out for S (it was not considered for M and N). I therefore need to exercise my discretion afresh on the basis of the defences I have found are established.

• [293] In short, I have found the Judge was correct to find the child objection defence made out for M and N; that he erred in finding the consent (acquiescence) defence was made out; and that he erred in finding the grave risk defence was not made out for S. I have also determined the grave risk of an intolerable situation defence is made out for M and N.

• [294] It is clear that it is inconceivable that the discretion to order return would be exercised in circumstances where a grave risk of an intolerable situation has been made out.

• [295] If I am wrong in relation to M and N, and the only defence available in respect of those two children is the child objection defence, I would nevertheless have exercised my discretion to refuse to order their return. Factors which do not reach the threshold of a grave risk of an intolerable situation will nevertheless be relevant to an assessment of the best interests of the child. In conducting the balancing exercise, I would have taken into account on the one hand:

(a) The clear deterrent purpose of the Convention;

(b) The rationale that welfare issues should normally be considered in the place of the children’s habitual residence; and

(c) The interests of other children generally, in that declining an order for return may send the wrong message to potential abductors.

• [296] On the other hand, in considering the best interests of both M and N, I would have taken into account the following:

(a) They have both expressed a clear and consistent objection to returning to Australia;

(b) They are of an age and maturity where weight should be given to their views;

(c) Considerable weight should be given to their views for the reasons expressed earlier in the judgment;

(d) Both M and N have made improvements in their physical and mental health since being in New Zealand;

(e) There would be a detrimental effect on their health and wellbeing if they were returned to Australia. There is no suggestion that those would be short term effects; and

(f) The detrimental effects of separation from their two older siblings in New Zealand were M and N required to return.

• [297] I consider that the right balance would have been struck by exercising my discretion to refuse to order their return. This would not have been a situation where the “objective of stability for the mass of children” might be achieved “at the price of tears in some individual cases”.⁶⁵ The effects on M and N go beyond mere tears.

• [298] The grave risk of an intolerable situation would still have been made out for S on this alternative.

• [299] Accordingly, for reasons different from those expressed by the Judge, I exercise my discretion to refuse to order the return of the three children, M, N and S to Australia.

Summary of conclusions

• [300] In summary, my decision is as follows:

⁶⁵ See quote passage from Secretary for Justice v HJ at [287] above.

(a) The father’s first ground of appeal that the child objection defence under s 106(1)(d) in relation to M and N was not made out fails;

(b) The father’s second ground of appeal, that the Judge erred in finding the consent defence under s 106(1)(b)(ii) was made out succeeds. The Judge erred. The father did not acquiesce in the three children, M, N and S remaining in New Zealand;

(c) The mother’s cross-appeal against the Judge’s finding that the grave risk of an intolerable situation defence under s 106(1)(c)(ii) was not made out in relation to S succeeds. The defence is made out in relation to S. I have also found that the defence is made out for both M and N; and

(d) The father’s third ground of appeal that the Judge failed to properly exercise his discretion under s 106(1) fails. Because of my findings in relation to the defences made out I have exercised the discretion afresh. For reasons different from those given by the Judge, he was correct not to order the return of M, N and S to Australia.

Result

• [301] The father’s appeal is dismissed. The mother’s cross-appeal is allowed.

Costs

• [302] I reserve costs as I did not hear from the parties on this issue. My preliminary view is that costs should follow the event. If the parties are able to agree costs, a joint memorandum should be filed within 20 working days of the date of this judgment.

• [303] If costs cannot be agreed, the mother may file and serve a memorandum in support of an application for costs, within five working days of the date for the joint memorandum. Lawyer for the children may also file and serve a memorandum at the same time. Counsel for the father should then file and serve a memorandum within a further five working days.
• [304] Memoranda should not exceed five pages excluding attachments. I will determine costs on the papers.

Gordon J