Andersen v Lewis [2023] NZHC 390 (3 March 2023)

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-260

[2023] NZHC 390

UNDER	Care of Children Act 2004
IN THE MATTER OF	an appeal against a decision of the Family Court
BETWEEN	ANDERSEN Appellant
AND	LEWIS Respondent

Hearing:	20-21 February 2023
Appearances:	M J Bryant and G J McIntosh for Appellant S R Jefferson KC and C T Moore for Respondent A R Beaumont as Lawyer for Child
Date:	3 March 2023

This judgment was delivered by me on 3 March 2023 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

[1] This is an appeal from a decision of Judge Hambleton in the Family Court at Christchurch, granting an application for an order under s 105 of the Care of Children Act 2004 (the Act) to return an 11-year-old child (the child) to the United States.¹The application was brought under the provisions of sub-pt 4 of pt 2 of the Act which incorporates into New Zealand law the Convention on Civil Aspects of International Child Abduction, as signed at the Hague on 25 October 1980 (the Hague Convention).

[2] It was not contested in the Family Court, nor in this Court, that the United States is the child’s country of habitual residence and that he had been wrongfully retained in New Zealand by his father in breach of the mother’s rights to custody.²The issue for determination was whether the father could make out one or more of the grounds for resisting an order for the child’s return, as provided by s 106(1) of the Act. The Family Court held a defence to a removal order had not been established by the father. He now appeals that decision.

[3] The father, Mr Andersen, aged 45 years, and the mother, Dr Lewis, aged 36 years, are both citizens of the United States.³They met in February 2010 and later married in June of that year. The child was born on 24 December 2011 in Louisiana and is now aged 11. His parents separated in 2012 and were divorced in August 2013. Mr Andersen has four other sons, aged between six and 23 years, from other relationships who live in the United States, and has twin daughters here in New Zealand from his current relationship. Dr Lewis has three other children, all younger than the child, from other relationships who are in her care.

[4] Care arrangements for the child were the subject of a number of orders made by the Louisiana District Court, which provided for joint legal custody of the child and made provision for physical custody and parenting arrangements. In 2017, the parties entered into an agreement to modify those orders because Mr Andersen planned to relocate to New Zealand with his current wife. The Louisiana Court approved the parties’ agreement and, on 3 January 2018, made orders by consent that provided for:

[6] Mr Andersen relocated to New Zealand in February 2018. Since that time the child has periodically travelled to New Zealand and remained for lengthy periods in the father’s care. As anticipated by the court order, in May 2018 the child travelled to New Zealand for two months before returning to the United States on 1 August 2018. With both parents agreement, the child travelled to New Zealand on 21 January 2019 and stayed with his father for a period of six months, before returning to the United States on 22 July 2019.

[7] As anticipated by the court order, the child travelled to New Zealand on 9 December 2019 to be with his father. However, he did not return to the United States for over a year, finally flying back to that country with his mother on 17 December 2020. During that period, Dr Lewis relocated to Virginia. Again, as anticipated by the court order, the child travelled to New Zealand on 5 June 2021. He has not returned to the United States.

[8] The parents have varying views as to the reasons why the child stayed for longer periods than those stipulated by the 2018 consent order and place different glosses on why that occurred. The Family Court discerned the following reasons why the child stayed for longer periods than were defined in the order, which have not, at least directly, been challenged on appeal:

The first is that [Mr Andersen] applied for [the child] to have dual residency and told [Dr Lewis] that [the child] needed to be in New Zealand for a minimum of 6 months; this application has been supported by [Dr Lewis]. The second reason relates to the visit for Christmas 2019, which became extended beyond what either parent could have anticipated because of the impact of covid. There were difficulties with [the child’s] return, not on the grounds argued now but because of covid and then [Mr Andersen’s] inability or unwillingness to make travel arrangements for his return. Contrary to the court order, [Mr Andersen] required [Dr Lewis] to travel to New Zealand to collect [the child] and to fund the travel costs of herself and [the child], in full.

[9] On 1 December 2021, the appellant filed an on-notice application for a parenting order in the Family Court, seeking that he be granted day-to-day care of the

[10] On 17 March 2022, Dr Lewis applied to the Family Court for an order the child be returned to the United States.

[11] The underlying premise of the Hague 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. The Convention seeks to ensure the prompt return of a child who has been wrongfully removed to or retained in any Contracting State to the child’s State of habitual residence unless one of the prescribed exceptions applies and return is not considered appropriate. Its further objective is to ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other State. New Zealand became party to the Hague Convention with effect from 1 August 1991. The United States has been a party since 1 December 1983.

[12] The court to which an application for return is made, is concerned with the forum for disputes over care and control of children, rather than with the making of substantive determinations regarding those issues. The court’s task is to decide the appropriate forum for determination of the child’s interests, rather than to undertake a thorough investigation of those interests.⁵

[13] The relevant operative provisions of the Hague Convention are implemented in this country by ss 105 and 106 of the Act:⁶

[14] There is no issue the grounds for an order for the return of a child have been established in this case. The focus in this dispute is whether any one or more of the grounds for refusal of a return order, set out in s 106, have been made out. That section relevantly provides:

(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—

[15] Mr Andersen relies on s 106(1)(c)(i)–(ii) and (d). He says there is a grave risk the child’s return would expose him to physical and psychological harm, or otherwise place him in an intolerable situation. Additionally, that the child objects to being returned and his objection should prevail. There is an onus on Mr Andersen to prove, on the balance of probabilities, that these grounds apply.⁷In the event such a ground is established, the Court has a discretion whether in the particular circumstances to order the return of the child.

[16] In Summer v Green, Wylie J summarised the observations made by the Court of Appeal, in LRR v COL, regarding the nature and purpose of the statutory exceptions within the wider framework of the Convention:⁸

“(a) The Court emphasised that the Hague Convention is framed on the assumption that prompt return, in cases where no exception applies, is in the best interests of the child. The Convention however 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 the child. The exceptions are integral to the scheme of the Convention. While it is not the function of a requested State to conduct a wide-ranging enquiry into the best interests of a child, the prompt and focused enquiry required is designed to ensure that the outcome does serve the interests of the child. The Court referred to s 4 of the Act, which deals with the child's welfare and best interests and requires that they be the first and paramount consideration in the administration and application of the Act. It noted that this imperative applies to proceedings seeking the return of a child.”

[17] The Court of Appeal, in LRR, also referenced the relationship between the Convention and international human rights instruments, including the United Nations Convention on the Rights of the Child (UNCROC) to which New Zealand is a signatory. It also endorsed the views expressed by the United Kingdom Supreme Court, in Re E, by Baroness Hale and Lord Wilson, regarding the objectives of the

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.

attained an age and maturity at which it is appropriate to take account of her views (article 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" (article 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.

⁹Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144.

[18] The exceptions to the obligation to return are, by their very nature, restricted in their scope. They do not need any extra interpretation or gloss,¹⁰but should not be “narrowly construed”.¹¹

[19] Should one or more of the exceptions be made out, the Court is required to undertake an overall assessment to determine whether in the circumstances of the particular case, it is appropriate to refuse to make an order for the return of the child. In Secretary for Justice v HJ, Tipping J, delivering the judgment of the majority in the Supreme Court, observed:¹²

... 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.

[20] The parties were agreed the discretion requires a court to compare and weigh two considerations. One concerns the welfare and best interests of the child. The other concerns the significance of the general purpose of the Hague Convention in the circumstances of the case. If the court considers that return is not in the best interests of the child, the issue becomes whether some feature of the case, for example concealment by the party responsible for the wrongful removal or retention, nevertheless requires the discretion to be exercised in favour of return so as to avoid the perverse incentive inherent in refusing to order return.¹³

[21] That assessment does not require the discharge or meeting of any onus in favour of an order to return a child. In Re M (children), Baroness Hale rejected a suggestion the discretion should be approached on the basis that the refusal of an order for return should only occur in “exceptional cases”:¹⁴

... 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

¹¹At [81], citing D P v Commonwealth Central Authority [2001] HCA 39, [2006] CLR 401.

¹²Secretary for Justice (New Zealand Central Authority) v HJ, above n 5; see also S v P, above n 7.

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.

[22] The focus of the Court when hearing an application for a child’s return is limited. It is not charged with the assessment of long-term care arrangements for the child, or with determining which parent is to be preferred or best placed to provide for the child. It is not its function to determine the underlying merits of whether the child is better off in one country or another. The Act is designed to achieve international co-operation to prevent the wrongful removal or retention of children, and proceeds on the basis that, except in the special circumstances provided for by s 106, the appropriate place to determine questions of custody, access and residence is the country in which the child was domiciled^..

[23] There is no dispute the appeal proceeds by way of rehearing, involving, as it does, the exercise of general rights of appeal concerning determinations that the statutory exceptions provided by s 106 do not have application.¹⁵It follows that this Court may substitute its own findings on questions of fact and law, and that the appellant is entitled to judgment in accordance with the opinion of this Court.¹⁶ Essentially, this Court is required to consider matters afresh and arrive at its own assessment of the merits of the case with no particular deference required to be given to the Family Court’s findings. In that regard, it is to be noted the matter was dealt with on affidavit evidence without cross-examination, as is ordinarily the way with Hague Convention proceedings.

[24] The Family Court addressed each of the s 106 grounds relied upon by Mr Andersen to resist the return of the child to the United States. In relation to the first ground, that there is a grave risk the child’s return would expose him to physical

¹⁶Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

[25] Mr Andersen alleges Dr Lewis whipped the child on one occasion and hit him with footwear on another. There was also an incident of family violence between Dr Lewis and her husband that was said to have put the child at risk. In respect to Mr Andersen’s concern the child would be exposed to psychological harm, the Family Court referenced an allegation that Dr Lewis attempted suicide in October 2021, that she has a gun in her home, has sought advice from a psychic, involved herself with “potentially dangerous men”, and was diagnosed with a borderline personality disorder when she was a teenager.

[26] The Family Court referred to evidence of Dr Lewis having sought police assistance with respect to the incident of family violence and of obtaining a protective order against her husband. Dr Lewis says that relationship has now ended, but Mr Andersen maintains there is evidence that indicates that is not so. The Family Court also reviewed evidence of an investigation conducted in March 2021 by local Child Protection Services because of issues raised by the child with his schoolteacher. That was closed in May 2021 with a determination that no steps were required to intervene in Dr Lewis’s parenting of her children.

[27] In addressing these matters raised by Dr Lewis, the Family Court Judge held there was “scant evidence” of Mr Andersen having identified concerns about the child to Dr Lewis at the time he became aware of the issues upon which he now relies; that the “grave risk and intolerable situation are high thresholds”; and that the relationship between Dr Lewis and her husband had ended. The Judge found that Dr Lewis had acted protectively by seeking police assistance, applying for protective orders against her husband, enforcing those orders against him, and engaging with the local Child Protection Services investigation.

[28] In relation to Mr Andersen’s evidence of Dr Lewis telling him during their relationship she has had a diagnosis of borderline personality disorder since she was a teenager, which she denied, the Judge noted that, if that was so, it was something he had been aware of when he consented to the court orders that currently regulate the child’s care and, in particular, the 2018 arrangement which designates Dr Lewis as the child’s domicile parent. The Judge acknowledged that Dr Lewis retains care of her other three children and there was no evidence of any intervention being required into her parenting. The Judge rejected the proposition the US authorities’ protective measures were either insufficient or ineffectual, noting that care is required not to question the competence of another Convention member’s child protection laws and practice.

[29] Overall, the Family Court considered there were protective measures in place, and that the child would not be exposed to Dr Lewis’s husband’s behaviour because that relationship was now at an end. The Judge imposed a condition that the child is not to be punished using any form of corporal punishment or physical force, but concluded Mr Andersen had not established there was a grave risk an order to return the child to the United States would expose him to physical or psychological harm, or otherwise place him in an intolerable situation.

[30] The Family Court then turned to consider the second ground relied upon by Mr Andersen, that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to give weight to his views. The Judge firstly set out parts of the evidence of a counsellor the child has been seeing in New Zealand. This relays the child’s views about not wanting to return to the United States, and concerns expressed by him to Lawyer for the Child about his wish to remain in New Zealand. The Judge then addressed each of the questions identified in White v Northumberland.¹⁷

[31] The child’s objection to returning to the United States was acknowledged, although that was noted as appearing to be focussed on a return to Dr Lewis’s care, as opposed to returning to the United States. In relation to the issue of whether the child

[32] The Judge concluded the child’s views appeared to have been coloured by his experience of the negative effect on family life resulting from the relationship between Dr Lewis and her husband. It was accepted this period while Dr Lewis and her husband were in a relationship has had an impact on the child but, because that relationship had ended while the child was in Dr Lewis’s care, the Judge concluded the family situation should have improved.

[33] It appears to have been accepted the husband kicked the child, and that at least one of the allegations of Dr Lewis using physical force on the child was admitted by her, although it was noted that what Mr Andersen refers to as a “whipping”, Dr Lewis refers to as an occasion when she smacked the child. An allegation of hitting the child using footwear was denied by the mother, and the Court did not attempt to determine that allegation. It was noted that corporal punishment, unlike in this country, is not illegal in the United States. The Judge concluded that two isolated occasions across the lifetime of a 10-year-old child does not reasonably correlate to a certainty that it will happen again.

[34] The Judge expressed concerns regarding Mr Andersen’s compliance and previous failures to return the child to the United States in accordance with the terms of the court order, and that the father’s concerns as to future contact and care arrangements may have influenced the child’s views. The child has been recorded as referring to wanting “supervision” when he is with his mother, which the Judge noted is specific terminology relating to a safety concern when managing contact arrangements between a parent and child. This was considered to be terminology which he would not ordinarily have been aware of. That and the timing of his father’s

[35] The Judge noted the child as having referred to missing his sisters in New Zealand if he is returned to the United States, but makes no mention of his mother, his older and younger paternal siblings, or younger maternal siblings in the United States, nor his maternal and paternal grandparents in that country. It is thought this may indicate the child has not been able to weigh up the pros and cons to make a comparative assessment, and that he provided “little sense of any positive view about the USA”.¹⁹The Judge also expressed concern that the counsellor, who did not have any contact with the child’s mother before undertaking her work with the child but had meetings with Mr Andersen and his wife, did not have a balanced view of the parental relationship. It was further considered that the perspective provided to the counsellor may have influenced her involvement and, in particular, the child’s reported views and presentation.

[36] The Judge concluded that not all of the child’s views were “reasonable or soundly based”.²⁰While it was noted the child had referred to memories of his last time with his mother as not being happy and that there is a connection between that experience and his present objection to returning to the United States, a concern was expressed by the Court that the strength of the child’s view may not have been formed independently or be entirely authentic to his. The Judge described “a basis for concern” that the child has been influenced and that pressures brought to bear on him which detract significantly from the weight to be placed on the child’s view.²¹The Family Court determined that whilst the child has expressed a view and is of an age where those views can be taken into account, the context in which he came to form them meant little weight could be attributed to his objections.

[37] Despite this finding as to the weight to be attributed to the child’s objection, it was not disputed the Court was obliged to consider how its residual discretion should be exercised. In doing this, the Judge identified the need to undertake a balancing

[38] Mr Andersen argued (as he did on his appeal) that the child should remain in New Zealand because he is settled here as a result of spending long periods in the care of his father. He maintained those extended periods came about as a result of a need to support a dual residency application for the child, which Dr Lewis had agreed to, and the exigencies of the COVID-19 pandemic that had resulted in the child having to remain in the country. It was argued these cumulative periods of care have meant the child has enjoyed a period of relative stability, both in terms of his schooling and domestic arrangements, and that it would cause him considerable upheaval if he was to have to return to the United States.

[39] The Judge rejected that argument, observing that to endorse such a claim would be to validate the situation which had arisen as a result of Mr Andersen having twice broken the agreement between himself and Dr Lewis, and that an order for return would typically involve some disruption for the child, but that by itself does not justify refusing an order. In that regard, it was noted the child’s parents had agreed to him living between two countries which would necessarily involve disruption of relationships with family, friends, schooling and extra-curricular interests.

[40] The Family Court concluded the United States courts were best placed to determine the child’s long-term care, as it had done in the past, and considered this was not a situation where the Court’s discretion should be utilised to make an order contrary to the return of the child.

[41] Mr Andersen appeals the decision of the Family Court on the basis it was wrong in fact and law to make a return order and that it erred in its assessment of the grounds for refusing an order under s 106 of the Act. The making of the order, it was submitted, was inconsistent with the child’s welfare and best interests.

[42] In advancing his appeal, Mr Andersen alleges 10 identified errors, which he argues either individually or in combination resulted in the wrongful issue of the return

The Court erred in fact by misstating the terms of the 2018 stipulated judgment

[43] It is alleged the Judge misstated the terms of the 2018 order that governed the arrangements between the parties and therefore misapprehended the periods of time the child would be in Mr Andersen’s care in New Zealand. I do not consider there is merit in this point. In setting out the background, the Judge summarised the essential effect of the 2018 consent order. The description provided a brief overview of the order and did not purport to set out its terms in detail.

[44] It was noted the child will travel to New Zealand “every summer”.²²There is no reason to suppose the Family Court did not appreciate that meant summer in the norther hemisphere at the time schools in the United States take their long vacation, nor that it was unaware the order provided for the child to visit New Zealand every second Christmas, although that is not explicitly referenced. The terms of the orders were before the Court in an affidavit made by a United States domiciled attorney, which set out the applicable law of that country and attached each of the stipulated judgments of the local Louisiana Court, including the 2018 consent order. There is no basis to consider the Judge was under any misapprehension as to the terms of the order and the lengthy periods of time it provided for the child to stay in this country.

The Court erred in discounting the evidence of the child’s counsellor by wrongly concluding the changes to the child’s arrangements to return to the United States in 2020 were as a result of Mr Andersen’s actions

[45] There is an issue between the parties regarding the reasons for the child remaining in New Zealand throughout 2020, and who should be held responsible for this non-compliance. Mr Andersen emphasised the effect of the COVID-19 pandemic and the impact that had on the ability to travel internationally, the cost of such travel, and the restrictions regarding entry into New Zealand. Mr Andersen maintained Dr Lewis had twice changed the date of the child’s return travel, and that arrangements regarding such travel were unilaterally varied by her. Dr Lewis’s evidence was that Mr Andersen had given her various inconsistent reasons why he was not returning the child to the United States over the course of that year. In broad terms, each suggested it was the fault of the other, or, in Mr Andersen’s case, circumstances beyond his control, as to why the child could not be returned during this period. I do not consider it is necessary for me to go into any further detail regarding that controversy for the purpose of dealing with this issue.

[46] The Family Court Judge expressed reservations regarding the evidence of the counsellor because her views may have been informed by an unbalanced view of the history of the parental relationship, as a result of only having contact with Mr Andersen and his wife. There was a concern that she drew on potentially inaccurate information in forming her opinions. In that respect, the Judge cited the counsellor’s evidence of Dr Lewis “constantly changing the arrangements for [the child’s] return to New Zealand and the impact on him, when in fact those travel arrangements were [Mr Andersen’s] responsibility”.²³

[47] The short point is that the Judge’s reference to this part of the counsellor’s evidence was to illustrate the Judge’s concern that the counsellor was receiving her information from only one source, being Mr Andersen and his wife, and how this was likely influencing her views of the child’s situation. The Judge illustrated this by referencing this criticism of Dr Lewis, which could only have been sourced from Mr Andersen, but which disregarded other considerations relating to the travel

The Court erred in concluding there was no evidence that either party had applied to vary the 2018 consent order

[48] The Judge did err when she stated she had not been given notice of any application by either party to vary the 2018 order. The evidence provided by the United States attorney referred to Dr Lewis having filed petitions to modify the “custody and visitation provisions” of the 2018 order, and Dr Lewis herself refers to the hearing of her application being postponed pending the determination of the Hague Convention proceeding in this country. However, it is not apparent this factual error is of any material consequence. As noted by the Family Court Judge the 2018 order remains in force. Both parents have made their own applications regarding custody and access in the respective jurisdictions in which they are domiciled.

Grave risk that child’s return would expose him to physical or psychological harm, or otherwise place him in an intolerable situation

[49] In LRR v COL, the Court of Appeal exhaustively reviewed the approach that the Court is required to take to its assessment of the grave risk exceptions:²⁴

[87] First, as noted above, 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 ...

[88] Second, the court must be satisfied that return would expose the child to a grave risk. This language was deliberately adopted by the framers of the Convention to require something more than a substantial risk. A grave risk is a risk that deserves to be taken very seriously. That assessment turns on both the likelihood of the risk eventuating, and the seriousness of the harm if it does eventuate ...

[89] Third, consistent with the focus of the exception on the circumstances of the particular child, a situation is intolerable if it is a situation ‘which this particular child in these particular circumstances should not be expected to tolerate’.

[90] Fourth, the inquiry contemplated by this provision looks to the future: to the situation as it would be if the child were to be returned immediately to their 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. There will seldom be any certainty about the prediction. But certainty is not required; what is required is that the court is satisfied that there is a risk which warrants the qualitative description ‘grave’ ...

[91] Fifth, it is not the court's role to judge the morality of the abductor's actions. It is not in a position to do so, and this is in any event irrelevant to the forward-looking inquiry contemplated by the Convention ...

[92] Sixth, the burden is on the person asserting the grave risk to establish that risk, as the language of art 13 and s 106 of the Act makes plain. But the process for determining an application under the Convention is intended to be prompt, and the court should apply the burden having regard to the timeframes involved and the ability of each party to provide proof of relevant matters ...

[93] 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 the child ...

[95] However, the focus remains on the situation of the child. It is necessary for the person opposing return of the child to the requesting State to articulate why return would give rise to a grave risk of an intolerable situation for the child. Is it because there is a grave risk that the child will be exposed to incidents of violence directed at the child's mother? Is it because there is a grave risk that actual or feared violence will seriously impair the mother's mental health and parenting capacity? The person opposing return needs to establish to the court's satisfaction the factual foundation for the specific concerns they advance.

[96] Eighth, s 106(1) confers a discretion on the court to decline to make an order for the return of the child if one of the specified exceptions is made out. However, ... if a grave risk of an intolerable situation is made out, ‘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’.

[100] ... what matters is that if the return of a child to that child's State of habitual residence would expose the child to a grave risk of an intolerable situation, it would not be appropriate to make an order for the return of the child. The interests of the child in not being exposed to that risk cannot be outweighed by the goal of deterring future would-be abductors.”

[50] Mr Andersen argues the Family Court erred in concluding there was no grave risk of the child suffering physical or psychological harm, or of being placed in an

[51] Mr Andersen argues the Family Court reached the wrong conclusion when determining there was no grave risk for the child. He identifies four particular errors in the Judge’s assessment of the evidence relating to these particular s 106 grounds. I address each of those points in turn before carrying out my own evaluation of these statutory exceptions. Before doing so it is necessary to say something about the nature and quality of the evidence, much of which was hearsay and of variable quality, and the difficulties that arise in assessing such material.

[52] There are multiple conflicts in the accounts provided by Mr Andersen and Dr Lewis, and the evidence relied upon by Mr Andersen needs to be approached with care because in some instances it comprises hearsay and at times multiple hearsay. Sources of information range from loose Facebook conversations to reliable formal records held by Courts or government agencies. In the absence of cross-examination, the assessment of some of this evidence can be problematic but this is not uncommon in cases such as these, where there is a tension between the need for prompt decision making and the determination of factual disputes. The parties are agreed that, in the circumstances, the guidance provided by the Court of Appeal in Basingstoke v Groot is to be followed:²⁵

[39] ... In our view, deciding on conflicts of evidence is done in the usual way, taking into account such factors as any independent extraneous evidence, consistency of the evidence (both internally and with other evidence) and the inherent probabilities ...

[40] After assessing the evidence in the normal way, the Court must decide, on the basis of all of the evidence, whether the applicant has proved the matters set out in s 105 of the Care of Children Act (in this case habitual residence) on the balance of probabilities. We recognise that there may be cases where it is not possible, after making due allowance for the absence of cross-examination, to resolve the conflicts of evidence. If that is the case, then the applicant will have failed to discharge the burden and the application will be refused. Such cases would, in our view, be relatively rare. The Judge should, however, articulate why and to what extent the evidence of the parties is accepted or rejected and the effect that this has on the determination ...

[53] The approach to evidence in such cases was the subject of further appraisal by the Court of Appeal in LRR v COL, where it observed:²⁶

[108] The apparent tension between speed and informed decision-making is mitigated to some extent if one bears in mind that in the context of s 106(1)(c) the Court is concerned with risks, not with certainties or even probabilities. And as noted above, the evidence that is provided by the parties should be evaluated having regard to the timeframes involved, and the ability of each party to offer evidence on the issue.

[109] The prompt process required by the Convention should not be derailed by broad or general allegations of risk to the child. If allegations made by the abducting parent lack sufficient detail and substance to be capable of establishing a grave risk, the court can and should deal with the matter summarily.

[110] However, there will be cases, of which this is one, where the parties give conflicting evidence about issues that go to the heart of the question that the court must answer. Each challenges the credibility of the other. It may be impossible to resolve these conflicts without oral evidence and cross- examination. What is the court to do?

[54] The Court of Appeal noted there was no simple and universally applicable answer to the difficult question it posed for itself. However, it commended the approach adopted by the English courts in such circumstances, which it described as having been helpfully summarised by the Supreme Court in Re E:²⁷

There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true ... Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co-operation

between liaison judges are so helpful. Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues.

The Court erred in concluding that Dr Lewis’s relationship with her husband had ended while the child was in her care

[55] Mr Andersen argued the Judge’s conclusion that Dr Lewis’s relationship with her husband had ended was not available to the Judge in light of evidence the relationship had continued after the child travelled to New Zealand in June 2021, and of ongoing contact and communications between Dr Lewis and her husband during 2022. He also submitted there were family violence incidents involving Dr Lewis and her husband that occurred in late 2021 and again the following year that undermine such a finding.

[56] In response, it was submitted on behalf of Dr Lewis, that the Judge’s finding that the relationship between herself and her husband had ended was one that was open to the Court on the evidence. It was acknowledged there was evidence adduced by Mr Andersen that raised a question as to the status of her relationship with her husband and whether it remained ongoing, but the Family Court Judge was entitled to accept Dr Lewis’s evidence that she had separated from her husband. Moreover, the Family Court was entitled to rely on Dr Lewis having obtained a protective order against her ex-husband, and to have obtained the assistance of police in respect of family violence incidents, that showed she had acted appropriately to protect herself and her family.

[57] I accept the question of whether Dr Lewis’s relationship with her husband is of some significance given the reliance the Family Court Judge placed on that protective factor when assessing the allegations regarding his contact with the child. The Judge clearly concluded the relationship was at an end and believed that, as a result, the family situation in the United States should have improved. Dr Lewis gave unequivocal evidence that she is not in a relationship with the husband or with anybody else in her affidavit of 11 April 2022.

[58] Mr Andersen relies on evidence that he maintains demonstrates the contrary. He points to a photograph of Dr Lewis posing with her husband and her three children (one of whom is also the husband’s) taken in November 2021, which I understand was

[59] Reliance is placed on Facebook communications between Dr Lewis and a female associate who is in contact with Mr Andersen that references the husband and indicates his relationship with Dr Lewis was continuing, at least at that time, in January and February 2022. It refers to Dr Lewis expressing the view that her husband will always be “around me”. The implication from the messages is that Dr Lewis cannot sever her association with this man. Messages refer to incidents of family violence when the husband has confronted Dr Lewis about being charged with breaches of the protection orders. In one of the messages there is a reference to how the husband kept Dr Lewis captive in her room and that they “beat the fuck out of each other”. The following concerning incidents involving the husband are expressly not disputed by Dr Lewis:

[60] The husband is involved in an access dispute with another woman who is the mother of his son. Dr Lewis was interviewed by a guardian ad litem for the purposes of that proceeding, during which she disclosed information about the husband, his conduct, and her relationship with him. Those details were recorded in the guardian ad litem’s report of 22 October 2021, which relevantly reads:

... [Dr Lewis] confirmed that she has recently had concerns regarding [the husband’s] mental health status and has recounted several events giving rise to these concerns. [Dr Lewis] stated that recently father has used corporal punishment upon two of her children, perhaps in her opinion to excess, has been stressed and argumentative, and has exhibited strange behaviours. [Dr Lewis] confirms that she sought and was granted a protective order in the county of Chesterfield, but states that it is her intention to withdraw that protective order “a week or so before his trial”. She states that she was instrumental in getting [the husband] to seek treatment with a counsellor and psychiatrist, and that she believes that father has been prescribed medication to treat bipolar disorders. [Dr Lewis] states that she has noted an improvement in [the husband] but states that he is not yet “a 100%”. [Dr Lewis] advises that she has never observed father use any form of physical discipline upon the subject child and [the husband] has not become physically abusive towards her. [Dr Lewis] is aware that pending charges against the father exist for violations of the Protective Order and confirms that father had contacted her and had come to the marital residence after the issuance of the Protective Order, and on one occasion, attempted to or succeeded in climbing in a window. She relates an occasion where she was to appear in Court one morning in regards to the Protective Order proceedings and that [the husband] attempted to prevent her from leaving by taking her keys, taking her cell phone, and blocking her means of egress. She stated also that she did not

believe that he had made any actual attempt to kill the two persons [he had previously threatened to kill], nor does she believe it was his ultimate intent to do so. [Dr Lewis] expressed her intention to remain married to [the husband]. She is hopeful that his current treatment and medication will resolve the couples current issues.

[61] This information was sought directly from Dr Lewis and has been recorded in a formal report made to the Virginia Juvenile and Domestic Relations District Court. In response, Dr Lewis refers to this information as hearsay, despite it having been sourced directly from her and recorded in a formal report. In terms of the substance of this material, she only comments on the results of some drug testing undertaken by her husband that is documented in another report filed with the Court.

[62] A further piece of evidence that appears to reveal the dynamic of the relationship between Dr Lewis and her husband is a Facebook message in which Dr Lewis refers to her husband being in jail, presumably for breaching protective orders. Dr Lewis states: “I hate to leave here but he’s not going to stop breaking in so I think I need to move.” There is other messaging in which Dr Lewis refers to pending charges against her husband that include assault and battery, and trespassing. There is also a reference in the evidence, confirmed by Dr Lewis, of her having asked the child in October 2021, on the telephone, whether her husband had touched him inappropriately. However, there is no other mention or information relating to this type of concern. There is also evidence of there having been an incident involving Dr Lewis and her husband that occurred in April 2022 which resulted in criminal charges being laid against him, including battery, theft, and violating a protective order to which I will refer later in this judgment. It is to be noted that a formal document filed in respect of those criminal proceedings records an address provided by the husband which matches that of Dr Lewis.

[63] It was stressed on behalf of Dr Lewis that, because she and her husband have a child together with whom both maintain contact, inevitably there will be interface between them, and necessary contact and communication for this purpose need to be distinguished from them remaining in a relationship. It was also submitted that what needs to be demonstrated is that the husband is part of Dr Lewis’s household, and it was submitted that has not been shown to be the case. It was argued on her behalf that it is simply not sufficient to point to pieces of information that indicate they continue to have contact to conclude they remain in their marriage, particularly in the face of Dr Lewis’s evidence that their relationship is over.

[64] In assessing the evidence of whether, contrary to her direct claim that she is not, Dr Lewis continues to be in a relationship with her husband, I am mindful of the evidential issues that arise relating to that question. These can be better assessed by a local court that will have the opportunity to test the validity of the concerns raised and be better placed to make findings concerning Dr Lewis’s credibility, which has directly been put in issue by Mr Andersen. However, having made that acknowledgment, I consider there is sufficient material to suggest the Family Court should not have been as definitive as it was regarding whether Dr Lewis’s relationship with her husband has

[65] The evidence indicates that Dr Lewis has conflicting views about her husband which she expresses to different people in different situations. She appears to have continued to be involved with him and that, as a result, there have been further instances of family violence which have involved the police. That said, as the Family Court observed, Dr Lewis has shown a willingness to involve the authorities, to seek assistance from the police, and obtain protective orders when she has considered that necessary, and, as a result, appears to have demonstrated a preparedness to take steps to protect her family. However, as noted, it remains unclear whether Dr Lewis and her husband’s relationship is at an end. As a result, concerns regarding his contact and interaction with the child (whatever they may be assessed to be) cannot be put to one side, nor, importantly, can the exposure of the child to family violence be discounted with any confidence.

The Court erred in its finding regarding whether Dr Lewis had attempted suicide in October 2021

[66] Dr Lewis’ evidence that “I have never attempted suicide or been accused of attempting suicide outside of this incident” is somewhat equivocal and open to interpretation. However, it was conceded on behalf of Dr Lewis that she did attempt to commit suicide in October 2021. I proceed, therefore, on the basis the Family Court erred when it recorded that Dr Lewis “denies attempting suicide”. It follows that the Court did not factor this event into its assessment of the grave risk exception and the child’s safety. However, it is argued on behalf of Dr Lewis that the failure to make findings in respect of this incident does not undermine the Family Court’s overall assessment of the risk of psychological harm should the child be returned to the United States.

[67] It does not appear to be disputed that this incident involving Dr Lewis attempting to commit suicide involved her taking an overdose of drugs that she had been prescribed for depression. Dr Lewis appears to have told a number of people what she intended to do. The incident resulted in a forced entry into her house and her

[68] Mr Andersen is critical of Dr Lewis not having tendered any information relating to the current state of her mental health in the absence of any evidence of her having been the subject of any more recent mental health assessments. Dr Lewis maintains she did reach out to clinical psychiatrists in an attempt to get a mental health evaluation but they were “booked out far in advance”. In any event, it was submitted on behalf of Dr Lewis that a mental health assessment was carried out at the time and it is apparent no concerns were raised regarding her ability to care for her other children. Moreover, it was submitted that, if Dr Lewis’s mental health remains an issue, the local court is best placed to assess any concerns.

Failure to make findings as to the nature and extent of the violence perpetrated by Dr Lewis and her husband towards the child

[69] Mr Andersen acknowledged the Family Court made some mixed findings regarding the allegations of violence. The child disclosed to Lawyer for Child that his mother had hit him with a slipper and a belt. The child also spoke about the husband kicking him. These are allegations the child has repeated to other persons. However, it was submitted the Court failed to address Dr Lewis’s statement recorded in the guardian ad litem’s report, set out at [60], that the husband had “... used corporal punishment upon two of her children, perhaps in her opinion to excess ...”, nor apparently taken account of Dr Lewis’ acknowledgement in messages to Mr Andersen and his wife that the husband had been violent towards the child.

[70] It was also argued, in support of this ground, that the concept of violence is wider than physical violence and encompasses psychological violence.²⁸It includes “psychological abuse”.²⁹Examples of such psychological violence disclosed by the child to his father were cited by Mr Andersen in his evidence. These were said to include the husband restricting or monitoring the child’s contact while in the United States with Mr Andersen and his family; the husband punishing the child by removing his bedroom door from its hinges (there is a suggestion this was in response to the child slamming the door); and an occasion when the husband told the child he would “knock his fucking brains out” if he touched the husband and Dr Lewis’s unborn child. She was obviously pregnant at the time. Mr Andersen is critical of the Judge not making any findings in respect of the psychological violence.

[71] It is correct the Judge did not make complete findings about the allegations of physical abuse, but the Judge explicitly noted the child having referred to two occasions when Dr Lewis had used physical force on him. The Court recorded that Dr Lewis acknowledged having smacked the child (not “whipping” as it is referred to by Mr Andersen), but that she denied the allegation of having hit the child with footwear (or with a belt). The Judge stated she was unable to determine that allegation. Proceeding on the basis there had been two such occasions of physical abuse perpetrated by Dr Lewis, the Judge understandably concluded that when assessed against the “lifetime of a 10 year old child” it does not “correlate to a certainty that it will happen again”.³⁰

[72] The Judge also proceeded on the basis of an apparent acceptance that the husband had kicked the child, as the child had reported, but this was the extent of the evidence canvassed by the Judge. Other examples relied upon by Mr Andersen of the husband punishing the child were removal of his bedroom door from the hinges and the threat to cause him physical harm, which I accept are capable of constituting psychological violence. These, however, do not directly relate to Dr Lewis, who was not present at the time. In that regard, it is apparent that the child, on various occasions had been left in the husband’s care by Dr Lewis, and this was the case when these

[73] Insofar as the complaint of restrictions or monitoring of the child’s electronic contact with Mr Andersen is concerned, which is not referred to in the Family Court’s judgment, it is difficult to come to any reliable conclusions regarding this allegation, particularly when set against the background of Dr Lewis having willingly entered into arrangements to allow the child to travel to New Zealand, and her evidence of being supportive of the child maintaining a strong relationship with his father. The child has not made any complaint in this regard. It is not apparent this alleged concern can be sustained, and it appears primarily directed at the conduct of the husband.

[74] I do not consider Mr Andersen’s criticism of the Family Court’s findings regarding the allegations of violence against the child concerning Dr Lewis is sustainable, particularly having regard to the limitations the Court is faced with in having to assess this contested evidence. The evidence of Dr Lewis engaging in abusive conduct towards the child is limited. She maintains there was only one occasion when she spanked the child because he had struck his autistic brother when the two of them came into conflict. There is a paucity of information to sustain the other allegations in the absence of admissions by Dr Lewis, and which, in terms of extent and frequency, are also, as the Family Court noted, very limited. The focus is mainly on the conduct of the husband and to the extent there are concerns relating to his interactions with the child, in relation to which there must at least be some, the issue devolves to whether he remains part of Dr Lewis’s household and the status of their relationship, which may allow him to interact with the child or be responsible for his care. These are matters which I have already canvassed and will return to shortly.

Failing to make findings as to the nature and extent of family violence between Dr Lewis and her husband and the impact this would have on the child

[75] Mr Andersen is critical of the Judge not addressing the evidence of family violence between Dr Lewis and her husband. He submits the Court did not address itself to incidents that occurred between them after the child returned to New Zealand in June 2021. Mr Andersen acknowledged the Court did refer to Dr Lewis having contacted the police for assistance during an incident where the child was present that occurred before he left for New Zealand. This involved family violence between Dr Lewis and her husband that resulted in she and her children having to leave their home in a van. It was submitted by counsel for Dr Lewis that Mr Andersen’s evidence regarding that incident put the Court in some difficulty because the information available to Mr Andersen was second-hand hearsay. Mr Andersen’s informant was not present at the alleged incident and it was argued that little reliance could be placed upon it. Dr Lewis, on the other hand, is clear in her evidence that she did not hit or cause injury to her husband.

[76] I accept exposure to this type of family violence is a concern which was not directly addressed by the Family Court, and it is now apparent that there have been other incidents of conflict between Dr Lewis and her husband. However, having made that observation, there are two relevant considerations that need to be taken into account when assessing this aspect of the Family Court’s approach to the situation in the United States. First, the Court proceeded on the basis the relationship between Dr Lewis and the husband was over and that she had demonstrated a willingness to take steps to protect herself and her family by obtaining protective orders from the Court and involve the police, as she did in respect of the incident involving the case upon which Mr Andersen relies.

[78] Mr Andersen also relied on the evidence of a family violence incident alleged to have occurred on 8 April 2022 between Dr Lewis and her husband (to which I have earlier referred) that occurred in Georgia. As noted, Dr Lewis has sworn an affidavit that she was no longer in a relationship with her ex-husband. However, Mr Andersen argues she must be continuing to have contact with him despite the protection order in place. As I have already mentioned, he points to a change of address form submitted to the local court in the United States by the husband that lists his address as being that of Dr Lewis.³¹Mr Andersen argued this evidence undermines the Family Court’s finding that the relationship was at an end and that the child would not be exposed to the husband’s behaviour. I have concluded, contrary to the finding upon which the Family Court proceeded, that this is a potential concern, although it should be noted that this information regarding the April 2022 incident was not before that Court.

[79] Mr Andersen also placed reliance on the Family Court’s attempt to impose a condition on the return order that the child is not to be punished using any form of corporal punishment or physical force as tacit acceptance there was a risk to the child of further physical violence upon his return to the United States. I do not consider that such a precautionary step can reasonably be interpreted in that way. Leaving to one side the jurisdiction to impose such a condition and its practical effect, it is to be noted the Court is involved in the assessment of risk and the imposition of the condition may be seen as an attempt to address residual concerns arising from the allegations made by Mr Andersen.

³¹This information came before the Court as part of the bundle of documents prepared for the appeal. An application to adduce further evidence had been declined by Doogue J on 5 August 2022 (Andersen v Lewis [2022] NZHC 1924). However, an affidavit dated 30 November 2022 which contained this information was filed in support of an application subsequently made in the Family Court by Dr Lewis regarding access to the child in New Zealand. It was not entirely clear how the affidavit had come to be included in the materials for this appeal. Dr Lewis had not had the opportunity to comment on its content for the purposes of this proceeding, but [Mr Andersen] sought its admission. I ruled the only part of the affidavit that would be admitted would be that contained in paragraph 6.1, which referred to the formal court documents attached to the affidavit, and the content of these formal records.

[80] It was submitted the Family Court had no power to attach such a condition to a return order where none of the statutory defences had been made out. I accept there is no power to attach conditions to an order under s 105 in the absence of a finding that such a condition is necessary to effectively address a risk to the child that might otherwise be present and would have otherwise resulted in a finding of grave risk in its absence.³²

[81] It is not apparent from the Family Court’s decision that the addition of this condition was material to its finding there was no grave risk. There certainly is no indication that was the case from the Family Court’s analysis. The Court of Appeal has observed that such conditions must be practically effective and that if a grave risk would otherwise be made out, it is most unlikely a court would be satisfied the risk has been adequately addressed by a condition that is not readily enforceable for the benefit of the child. In the absence of the condition imposed by the Family Court being of any real practical effect, or it being an essential part of the Court’s finding that there was no grave risk, I do not consider there was jurisdiction to impose the condition. Equally, however, it is not apparent that such a finding advances Mr Andersen’ case.

Assessment of whether there is grave risk of physical or psychological harm, or the placement of a child in an intolerable situation

[82] Counsel for Mr Andersen referred to the observations of the Court of Appeal, in S v S, that the nature and seriousness of past violence may be a predictor of the type of violence that may occur in the future and that the Court, in assessing the issue of grave risk, is making an enquiry that is future focussed.³³It was submitted the prediction of future harm does not need to be certain but that, in any event, reliable evidence has been adduced that the child may be exposed to serious consequences that would place him in an intolerable situation.

[83] Dr Lewis, on the other hand, submitted the high threshold of grave risk has not been established and, while a return of the child to the United States and to his mother’s care will involve disruption to the child, that of itself does not constitute the

[84] I have closely reviewed the material upon which the parties rely. Insofar as the allegations of Dr Lewis being the source of a grave risk of physical or psychological harm to the child are concerned, I do not consider that can reasonably be concluded. The child has a good relationship with his mother, and the evidence of limited discrete instances of her applying physical force to him do not provide a basis upon which to conclude she presents a grave risk to the child. The Judge proceeded on the basis there had been occasions when the child had been physically disciplined and, while the reference to the use of a belt is a potential source of concern, given the state of the evidence, I accept the available material falls well short of suggesting Dr Lewis represents a grave risk of physical harm to the child.

[85] In relation to the question of psychological harm, apart from the evidence of the child being left in the care of the husband, whose conduct and interaction with Dr Lewis and her family I accept gives rise to some concern, there is no clear evidence that Dr Lewis presents a grave risk of causing the child psychological harm. Reliance was placed on evidence that indicates Dr Lewis has abused prescription drugs and that she gets ‘high’. There is also some evidence of her having admitted to an associate to having taken cocaine and of her socialising with people who do. Various references are made in social media exchanges to Dr Lewis being involved with another man, despite her claims to the contrary, and that she is dishonest about the nature of her relationships with other men.

[86] I accept there are indicators of Dr Lewis having abused prescription medicines. Aside from references in social media posts to getting high, her admitted suicide attempt bears that out. However much of the available information relating to her lifestyle is of poor quality. For example, material that raises concerns about her relationship with a new boyfriend is undermined by other evidence relied upon by Mr Andersen that refers to him as her ex-boyfriend. While I accept some of the

[87] I have given some close consideration as to whether questions regarding Dr Lewis’s mental health, particularly in light of her suicide attempt which was not factored into the Family Court’s analysis, may place the child at risk. On balance, however, there is nothing to suggest Dr Lewis has not recovered from this episode. She continues to care for her three children in the United States and there is no suggestion that her mental health is having an adverse effect of them. I accept that is a rather presumptive statement, but nonetheless there is a dearth of information that suggests the young children in her care are at risk, indeed, there is an absence of any such suggestion in respect of the child’s siblings.

[88] The focus must then turn to the husband and Dr Lewis’s relationship with him. There are aspects of the reported conduct of the husband which, as I have already noted, are concerning. These concerns are heightened when regard is had to Dr Lewis’s apparent own reporting to others of her fears in that regard. In particular, these include the husband administering excessive discipline, and the evidence of her marriage being blighted by episodes of family violence that has resulted in the intervention of the police and the making of court orders. The exposure of the child to that conflict, particularly if it is ongoing, has the potential to impact on the child’s psychological wellbeing and sense of safety.

[89] The Family Court proceeded on the basis that Dr Lewis’s relationship with the husband has concluded. The Court did not appear to engage with the evidence that is capable of reasonably indicating the contrary and which brings into contest Dr Lewis’s claim that her relationship has ended. As a result, I do not consider the question of whether the child is at grave risk of being exposed to physical or psychological harm,

[90] Despite that view and the reservations I have regarding the possible ongoing involvement of the husband with the child, should he return to the United States, which to some degree necessarily must be the case given Dr Lewis and the husband share a child of their own, I have not been brought to the position where I can conclude Mr Andersen has discharged the onus on him to establish that an order for the child’s return should be declined on the basis there is a grave risk his return would expose him to physical or psychological harm, or otherwise place him in an intolerable situation. There are two primary reasons why I have reached that conclusion.

[91] The first is that I do not consider the Family Court erred in its assessment that Dr Lewis has demonstrated an ability to seek assistance from the authorities to protect her family when necessary, and has shown a willingness to obtain protective orders and take formal steps to ensure she and her children are kept safe. I do not consider there is any basis upon which I could be permitted to reasonably conclude the processes in the United States, as a Convention country, are any less adequate than those in this country.³⁴The test of “grave risk” sets a high threshold, as does the requirement of an “intolerable situation”. There is evidence of family conflict between Dr Lewis and her husband, which requires vigilance as to how that may impact on children who may be exposed to such events. However, in light of the protective steps Dr Lewis has demonstrated she is willing to take, I do not consider it is open to the Court on the available material to find the child would be at grave risk of such serious consequences or conclude an order for his return would place him in an intolerable situation.

[92] The second reason for my conclusion is that I consider the Family Court was entitled to rely upon Child Protection Services in the United States having undertaken an enquiry into the family’s situation. It is not entirely clear what the trigger for this was, other than it related to a matter raised by the child at school that was obviously referred on to the appropriate agency. No further information has been made available

[93] In White v Northumberland, the Court of Appeal endorsed the approach taken by Chisholm J in W v N, where a child objects to being returned.³⁵A sequence of four issues are required to be addressed when this ground is raised for the Court’s consideration:

[94] Only if the first three cumulative requirements have been satisfied does it become necessary for the Court to consider whether its discretion to refuse an order for the return if the child should be exercised.³⁶

³⁵White v Northumberland, above n 17; W v N [Child abduction] [2006] NZHC 673; [2006] NZFLR 793 (HC).

[95] When considering this ground for refusing an order for return under s 106 of the Act, the purposes of the Hague Convention are required to accommodate the relevant provisions of UNCROC, which provides that the Contracting State party:³⁷

Shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

[96] Addressing that obligation, in Re M & Anor (children), Lady Hale commented:³⁸

... These days, and especially in the light of art 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child’s view. 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 objection should only prevail in the most exceptional circumstances.

[97] In an earlier decision of the House of Lords, Re D (A Child), Lady Hale observed:³⁹

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, who 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 a reason for failing to hear what the child has to say than it is for refusing to hear the parents' views.

[98] Relevant guidelines regarding “the strength of the validity” of a child’s objection were provided by the English Court of Appeal in Re T, which identified the following matters for the Court to consider when making that assessment:⁴⁰

³⁹Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 at 57.

⁴⁰Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192 (CA) at 204.

[99] The child has expressed a wish not to return to the United States and his mother’s care. He has done so repeatedly and consistently over the course of some 18 months since arriving back in New Zealand in June 2021. At that time he reported to his counsellor that he had not enjoyed going back to the United States on the last occasion. He said his mother and her husband were “not nice to me” and was upset that his mother went away for over a month and left him alone, to be looked after by the husband. He reported not liking the husband. The child said “he is not nice”, “he ignores Mum’s rules” and “he is mean to me”. He has told his counsellor on several occasions that he wants to be able to live in New Zealand with his father and family and visit the United States from time to time to see his mother and family there.

[100] When spoken to by Lawyer for Child, the child referred to having been yelled at by his mother and the husband. He said “they really get mad at me” and referred to his mother hitting him with a slipper and the husband running up to him and kicking him. The other occasion he mentioned was when he yelled at his brother and “Mum smacked me with a belt”. The child said he did not feel safe with his mother and expressed that view on more than one occasion during the meeting with Lawyer for Child.

[101] However, the child is also recorded as having made the incongruent statement of “preferring” when it is just the husband and his siblings, and that it is safer if his mother is not there. The child expressed the belief his mother would smack him with a belt again and that, if he was to return, “... stuff like that will almost definitely

[102] The child said he wanted to remain living with his father and to go to school in New Zealand. He said he was 100 per cent sure about that. The child said he had friends here and also talked of other family members he has in New Zealand. He said “it’s much nicer here” and that he does not have any friends in the United States and would miss his little sisters here in New Zealand. The child expressed the view he would like to visit his mother in the United States but only if his father came too, to protect him and ensure he came back to New Zealand. He was concerned that if he went to the United States his mother would not allow him to return to New Zealand.

[103] As I have previously recorded, the Family Court Judge expressed a concern that the views expressed by the child were not reasonably or soundly based, and that the strength of the views he had expressed, may not have been formed independently or be entirely authentic to him. There was a concern that he had been influenced and that pressure had been brought to bear on him.

[104] The appeal against this part of the Family Court’s decision was originally brought on the basis its conclusions that the child’s views had been influenced by Mr Andersen and that little weight could be attributed to them had been arrived at in error in the absence of supporting psychological evidence. That challenge can no longer be sustained in the wake of a report prepared for the purposes of the appeal, pursuant to s 133 of the Act, by Fleur Abrahamson, a clinical psychologist. She was directed to address the following discrete matters:⁴¹

[105] In light of the availability of this psychological opinion, Mr Andersen prosecuted his appeal against this part of the Family Court’s decision on the basis it had erred in concluding the validity of the child’s views were influenced by him and that little weight could be attributed to the child’s objection. Dr Lewis’s position is that the Family Court Judge was entitled to place little weight on the child’s expressed view and that the Family Court’s reservations regarding the authenticity of the child’s objection is supported by the recent psychological evidence.

[106] Ms Abrahamson addressed each of the specific questions she had been asked to consider, when directed to complete the s 133 report.

What the basis of the child’s objection was to returning to the agreed care arrangements

[107] The child, when interviewed by Ms Abrahamson, repeated his opposition to returning to the United States. He stated it was “not a nice environment” in his mother’s care and that his mother and her husband were “not always nice”. He again referred to having been hit with a belt by his mother when he got into conflict with his autistic brother and to the occasion when he says his mother hit him with a slipper. He referred, as he had previously, to the husband kicking him on another occasion. He also reported a time when his mother and the husband had argued about the house being untidy, and the husband preventing his mother from leaving.

[108] The child referred to Mr Andersen and his wife as “Mum and Dad”, and noted that he generally did not get into trouble. When he did, he said the punishment “made sense”, being an appropriate consequence for the wrongdoing. This appears to be in contrast to his treatment in the United States. After referring to telephone/video calls that he had two or three times each week with his mother and with his siblings in the United States, the child said his mother could be “mean” and that she told him he had been kidnapped by his father and tried to “trick” him into saying things which might be “bad for the case”, such as asking him if he missed his siblings.

[109] The child expressed the view to Ms Abrahamson that he wanted to live in New Zealand and to visit the United States for holidays with his father accompanying him. He reported that his mother had told him that on his return to the United States he would not be able to visit New Zealand regularly, but indicated he could visit for three months of the year. He said that if he had to return to the United States he would be very disappointed. He also commented that he thought his mother had suggested that he had requested “supervised contact” with his mother, and noted he had not said this. He added that his mother may actually believe he had been kidnapped (rather than making a malicious claim). He considered his mother could be unpredictable, although also observed that his father could have “exaggerated reactions”. He said his own behaviour had improved while he was in New Zealand and that he was in trouble lots when living in the United States.

[110] After summarising the child’s objection to returning to the United States, Ms Abrahamson opined that his statements indicated he was “aware and involved” in the parental conflict and that both parents had likely discussed care arrangements with him and exposed him to the issues. She observed the child was very likely experiencing a conflict of loyalties having been exposed to the adult conflict about his care, and becoming involved in that conflict. This indicated his parents had involved him in discussions and shared their views, albeit inadvertently, influencing the child.

Whether the objection is reality based and/or affected by undue influence and/or able to be addressed by explanation or intervention

[111] Ms Abrahamson acknowledged the child’s actual experience, as reported by him, included negative parenting approaches and inconsistency which have impacted

Whether or not the child has sufficient maturity and understanding to recognise the implication of the objection

[112] Dr Abrahamson reported that at almost 11 years of age the child has many of the skills required for competent decision-making, which involves four main components: expressing a choice, understanding, reasoning and appreciation. While the child was observed as having well-developed language skills and understanding, his reasoning remains (as would be expected) more immature than that of an adult. He has developed some ability to identify risks, but retains limitations for making complex decisions. It was noted that self-regulation develops strongly from the age of 12 until the age of 18 and continues to improve into early adulthood. The child still has that development ahead of him. Functions such as planning ahead, weighing risks and benefits, and processing complicated decisions, requires realistic appreciation of rewards and associated emotional regulation which is not fully developed before early adulthood. Ms Abrahamson advised that even though an adolescent can have intellectual maturity, this does not automatically imply the presence of emotional and social maturity. She described the child as being more vulnerable to making decisions which may not be well-balanced and may not promote positive development.

[113] Ms Abrahamson observed that, while Mr Andersen notes his son’s emotional maturity, the child’s school reports that he has experienced difficulties with emotional regulation and, while this has improved, there are some ongoing difficulties, which may be a feature of his circumstances. In Ms Abrahamson’s opinion, the child is

Having regard to the child’s age, cognitive ability, maturity, and the options available, how the child might respond if the Court makes an order for return despite the objection

[114] The child volunteered to Ms Abrahamson that he would be “disappointed” with a decision that he be returned to the United States. It was noted such a return would require some adjustment for the child and it is possible, if not likely, he may experience a behavioural regression, for example, in some of the difficulties he is reported to have with emotional regulation and social interactions. Ongoing therapeutic assistance may assist in mitigating adjustment difficulties for the child, and Ms Abrahamson considered it is likely that any difficulties would resolve over time. In that regard, it was noted consistency of care arrangements and predictability without fear of further litigation would support the child’s positive development.

[115] It was submitted on behalf of Mr Andersen that the child has expressed more than a mere preference or wish but a clear objection to being returned to his mother’s care in the United States which is rationally based and reasonable. As acknowledged by the Family Court Judge, the child is of an age where it would be reasonable for his views to be given weight and to be taken into account. That is even more so now that he has turned 11 years. It was submitted the child has demonstrated a high level of intelligence and that, while he lacks some emotional maturity, he is described as exceptionally bright and doing well at school. Reference was made to the observations of Lawyer for Child that the child presented as being thoughtful, and that, while he has strong feelings, he expressed himself moderately and did not make extreme threats that he would run away or harm himself if he did not get what he wanted. His calmness and ability to understand what was happening was assessed as being a sign of some maturity.

[116] While it was accepted that his age prevents some of his decision-making skills from being fully developed, it was submitted that Ms Abrahamson described the child as articulate with an ability to understand complicated concepts, who knew what he wanted. He was described as demonstrating a capacity for forethought, appreciating that should he have to return to the United States, he would return to a new school and neighbourhood, which he understandably does not favour, in comparison to the consistency of his schooling in New Zealand. It was submitted these were valid and sensible reasons for the child to want to remain in this country.

[117] It was emphasised that the child has expressed a preference to live in New Zealand for some period of time, having told his counsellor before his return to the United States in December 2020 that, while he wished he could bring his friends from the United States to New Zealand and “some of the cool American food he missed”, he preferred living with his father and stepmother and his half twin sisters. He stated at that time that he wished he could live in New Zealand and just visit his mother in the United States now and again for short periods of time. It was submitted the child’s views have been consistently sustained over a lengthy period and have endured, notwithstanding a six month return to the United States in the first half of 2021.

[118] It was argued that the child’s objection was “rooted in reality”⁴²having been informed by his own experiences when last in the United States, and could not be considered to be unreasonable. At that time, when he travelled from New Zealand he returned to a different State and a different school and would do so again if required to return. It was submitted the child’s objection needs to be assessed in light of the number of homes and schools he has attended in the United States, compared to the stability he has experienced in terms of his education and living arrangements in this country. If that analysis is undertaken, there is a reasoned basis for the child’s objection, which was described as cogent and rational.

[119] It was submitted that, while Ms Abrahamson has found the child to have been influenced by the views of both parents, that was unsurprising given the situation. The

[120] Finally, it was submitted that despite being in Mr Andersen’s care, the child continues to value his relationship with his mother, which demonstrates insight into the situation he finds himself. Even if he has been influenced by his father, it was argued that does not detract from the genuineness of the child’s views, nor their worth, when they are viewed objectively against the comparative situations the child will find himself in the respective jurisdictions. It was submitted the child’s reasons for wishing to remain in New Zealand should not be discounted and that the Family Court was wrong to attribute little weight to his objection.

[121] Turning to the exercise of the Court’s discretion, it was submitted the Court needs to prioritise the child’s safety and wellbeing and consider the impact on the child’s feelings of security and his psychological wellbeing if ordered to return to the United States. It was recognised in the s 133 report that a return would require some adjustment for the child and that it was possible, if not likely, he may experience behavioural regression. It was argued there is a real risk that returning the child will have a detrimental effect on him, and that doing so would not be in his best interests. In that regard, the child’s welfare should not be secondary to policy considerations regarding compliance with the Hague Convention.

[122] Lawyer for the Child supported the child’s objection. Counsel emphasised the importance of the child’s right to express their views and to have them taken into account.⁴³It was re-emphasised that the child in this case has had a consistent view of not wishing to be returned to the United States, and that his concerns about being exposed to physical or psychological abuse form part of his view of his situation. In that regard, it was noted that a central tenet of the Act was the need to protect the child’s safety and to act in accordance with the child’s welfare and best interests.⁴⁴It was submitted that sufficient evidence had been adduced to validate the child’s views

[123] It was acknowledged on behalf of Dr Lewis that the child has articulated an objection to being returned to the United States, but it was submitted this had been voiced in only relatively muted terms. Insofar as the prospect of change as a result of returning to the United States was the source of some upset to the child, it was submitted this was not unusual in these circumstances and was to be expected. It was argued this disruption, which was understandably of concern to the child, could not of itself justify refusing an order. It was submitted on behalf of Dr Lewis that the psychological report confirmed the Family Court’s assessment that the child has been influenced by his father and been unduly exposed to the proceedings, which must necessarily qualify the weight that can be afforded to his objection.

[124] The assessment made by the Family Court as to the weight to be given to the child’s views was endorsed as being correct in light of Ms Abrahamson’s observations and the concerns expressed that the reasons for the child’s objections were not “authentically his own”. In that regard, the examples provided by Ms Abrahamson of the child having become involved in his parents dispute were referenced, in particular the child’s unsolicited comment regarding his mother having suggested he had requested “supervised” contact, which he denies, align with the Family Court Judge’s expressed scepticism regarding the child’s use of that term that appeared to reflect Mr Andersen’s application in the New Zealand court for full custody of the child and limited supervised contact by Dr Lewis.

[125] It was argued on behalf of Dr Lewis that when the limited explanation provided by the child for his objection, that largely centred around the recitation of a small number of instances where the mother had used physical punishment, the husband kicking him on another occasion, and his mother at times becoming angry and being “mean”, was set against the child’s limited ability to appreciate the long-term implications of such a significant decision, the child’s views could carry little weight.

[126] It is uncontroversial that the methodology used by the Family Court in approaching the issue of the child’s objection was correct. It was accepted that having found the child had expressed a view that he does not want to return to the United States and the Court having determined he is of an age where it would be reasonable for his views to be taken into account, the Family Court was required to determine the weight it was prepared to give to the child’s objection. Importantly, notwithstanding the Judge having concluded that little weight could be attributed to the child’s views, it was recognised the Court was still required, given its earlier findings, to carry out an overall assessment and exercise its discretion.

[127] There is no issue the child has attained an age and maturity at which it is reasonable to give weight to his views. While there are some questions regarding the child’s emotional maturity, he is assessed as a bright and intelligent boy who has been observed to express himself in a thoughtful and moderate way and has consistently articulated his reasons for not wishing to return to his mother’s care in the United States. As concluded by the Family Court, it would therefore be reasonable for the child’s views to be given weight and to be taken into account.

[128] The next question is the weight that should be given to the child’s views. In carrying out that exercise, a number of factors are required to be taken into account. These include the nature and strength of the child's objections, the extent to which they are authentically those of the child or the product of the influence of the parents, and the extent to which they align or conflict with other considerations relevant to the child’s welfare, and the important policy objectives the Hague Convention seeks to advance.⁴⁵

[129] A particular difficulty that arises in making that assessment in this case is the extent to which the child has been influenced or pressured by others and the degree to which the objection the child has articulated is authentically his own. It cannot realistically be disputed that the child has been drawn into the court proceedings by both parents. Perhaps, not unexpectedly given his current living arrangements, he has

[130] Despite that likely being the case, there is a pool of information available to the Court that tends to bear out the child’s concerns regarding his sense of security and safety while in the care of his mother in the United States. Ms Abrahamson acknowledged the child’s actual experience as having contributed to his objection, which is described by the report writer as including “negative parenting approaches and inconsistency which have impacted his positive experience of home life at times”. However, it was also observed that the child’s unusual arrangement, in which he travels to different parts of the world and stays with each parent for months before returning, has contributed to the child’s feelings of insecurity.

[131] As noted by the Family Court, it is necessary to assess whether the child’s views are reasonable and soundly based. When the available material is read as a whole, I consider a number of concerns arise regarding the environment to which the child will return. The first relates to Dr Lewis’s mental health. While little is accurately known, and care is needed in this area, it is uncontroversial that she attempted suicide in late in 2021, and reportedly abuses prescriptions medicines in order to “get high”. She has described doing this to other persons. Another concern arises out of what appears to be a number of family violence incidents involving Dr Lewis and her husband, and the potential exposure of the child to such conflict. There are therefore some indicators of potential sources of instability for the child.

[132] The Family Court acknowledged the child’s views appear to have been “coloured by his experience of the negative effect on family life resulting from the relationship between [Dr Lewis and the husband]”, and that the period of time they were in a relationship had “an impact” on the child.⁴⁶However, these concerns were put to one side because it was believed the relationship had ended. As I have noted earlier, it is by no means clear that is the case. The child has expressed his concerns regarding the husband’s conduct towards him that include the use of physical violence,

[133] When these matters are taken in combination, questions arise regarding the child’s exposure to an apparently less than stable home environment which, while not sufficient to conclude the child is at grave risk, do tend to bear out the child’s feelings of insecurity with his mother and support the child’s statements to Lawyer for Child about his time living in America — “it was not nice being with Mum ... it was not nice at all.” As noted, while the evidence is insufficient to find the child would be at grave risk, much of that information validates the child’s expressed view of his diminished sense of safety with his mother and objectively supports the reasonableness of his outlook. I therefore do not consider his views of his situation should be readily discounted.

[134] To be added to the child’s actual experience when with his mother in the United States is the number of times he has moved to different homes and had to attend different schools. Prior to living in New Zealand in 2020, the child attended a school in Illinois. When he returned to the United States at the end of that year, he attended school in Virginia for six months before returning to New Zealand in June 2021. Dr Lewis moved to another home in Virginia in mid-November 2021 which is in a different school district. This means should he return to the United States, he would be going to another school that he has not previously attended. In comparison, the child has had consistent schooling in New Zealand at one school, where he is reported as doing well and making good progress.

[135] As Ms Abrahamson acknowledged in her evidence, leaving aside concerns regarding the extent to which the child has been the subject of influence, the child’s stated preference to remain in New Zealand and his reasons for wishing to do so are

[136] Ms Abrahamson acknowledged the child was reflective, and commented he is able to “reflect on motivators for behaviour” when referring to each of his parents’ respective positions, which is quite a sophisticated skill. However, she did not consider he had the more complex knowledge of the extensive disadvantages and advantages of various arrangements that attach to each parent. In that regard, Ms Abrahamson indicated she would want to see evidence of more sophisticated reasoning by the child, articulating why it would be good to stay in New Zealand, and expressing an understanding that such a decision would involve grief at the loss of his family in the United States. That would show some insight into an understanding of how significant his preferred choice would be in the long-term. Ms Abrahamson did not consider the child had that long-term understanding of the implications of his decision.

[137] While it was acknowledged by Ms Abrahamson that the child has expressed a view that he does not want to reside in the United States, not that he doesn’t want to see his mother again or have contact with her, she noted the child had developed a degree of rigidity of thought or focus, having developed a consistent idea about particular aspects of the proceeding which has likely been the result of having lived with his father. It was acknowledged the child’s view that he wishes to maintain contact with his mother shows he has reflected on the implications of his decision, and that he understands if he remains living in New Zealand he will see less of his mother, but there remains a concern that, because of his age and associated level of development, he did not appreciate the wider consequences for him.

[138] The child’s objections must be assessed in light of the limitations identified by Ms Abrahamson that qualify his decision-making capability, but there is no doubting the genuineness of the views held by the child. It was put to Ms Abrahamson that the influence that has been brought to bear on the child must inevitably dilute the essence of his objection. However, Ms Abrahamson was not entirely prepared to accept that proposition. She noted the child’s perception, whether based on reality or whether formed by a variety of different influences, remains his perception.

[139] As already observed, I consider the child’s views have been validly informed by his own lived experiences and, while account must be taken of the impact of the significant period of time he has remained in this country in his father’s company and the various influences of his parents, particularly his father, that are likely to have had on him, which means his views are not entirely unadulterated, as Ms Abrahamson herself observed, all of us have preferences and make decisions based on a variety of factors. The fact there have been these influences ought not necessarily disqualify the child’s views as not being genuinely held by him, or prevent his objection from being afforded appropriate weight, at least insofar as they can be discerned as reflecting his own authentic outlook on his situation.

[140] However, having made that acknowledgement, while a range of material has been made available regarding Dr Lewis’ situation and lifestyle in the United States, the child’s account of what he did not like about living with his mother was relatively limited. As the Family Court Judge observed, the child’s objection was “broadly described”, with little evidence of the child’s actual words, or reasons for why he held the view he did. While there was more information before me as a result of Ms Abrahamson’s appointment, a feature of the child’s objection was the recitation of the same small number of instances of physical punishment, without much detail or explanation by the child of his negative view of his mother and her circumstances.

[141] Despite those observations, I have concluded the child holds a relatively firm and consistent objection to being returned to the United States and that the Family Court should have attributed more weight to the child’s objection. Notwithstanding the limitations in his ability to appreciate the potential impact of more long-term consequences on his decision-making, I consider greater regard should have been

[142] The matters I have already canvassed concerning the nature and strength of the child’s objections and the extent to which the child’s views have been tainted by the influence of others are also relevant to the exercise of the discretion whether to refuse to make an order under s 105(2) for the return of the child. I am mindful that consideration of an application for the return of a child in accordance with the provisions of the Hague Convention centres on the question of forum, and that decisions relating to the long-term care and custody of a child are matters for another day. A court seized with such an application is not charged with making a substantive determination regarding those issues, nor is it placed to be able to undertake the type of enquiries or receive the detailed information necessary to accurately inform such decisions that have such long-term effects.

[143] As matters presently stand, there is an existing order issued by a court in the country of the child’s habitual residence that governs his care and control, and there is a need for this Court as a matter of comity, to recognise that the parties’ rights of custody and contact are presently governed by the other Contracting State’s law. However, the Act recognises that notwithstanding the wrongful retention of a child in breach of another parent’s custodial rights, there will be situations where the return of the child would be contrary to their interests.

[144] While the provisions of the Act which give effect to the obligations of the Hague Convention are expressly not limited by the fundamental statutory principle set out in s 4(1) — that the welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration in proceedings under the Act — and the best interests of the child are not expressly made a primary consideration in Hague Convention proceedings, that does not mean they are not “at

[145] The Family Court considered Mr Andersen to be culpable for having twice broken the agreement between himself and Dr Lewis. He was clearly in breach when he deliberately chose not to return the child in December 2021 and unilaterally chose to keep the child in this country notwithstanding Dr Lewis’s custodial rights. However, the circumstances of the child’s elongated stays in this country prior to that appear less clear, involving as they did the agreement of Dr Lewis to allow the child to remain in the country to meet residential requirements, and the difficulties caused by the COVID-19 pandemic which severely impacted on the ability to undertake international travel. Unlike in some situations, the child’s experience which has informed his views has developed over lengthy periods that are not entirely the product of Mr Andersen’s deliberate misconduct, at least not obviously so, or of a type that raises a concern that not ordering the child’s return will give rise to a perverse outcome of rewarding wrongdoing that is not otherwise ameliorated by countervailing factors relating to the child’s best interests.

[146] I consider this matter to be very finely balanced. However, in the end, I consider the child’s objection should be viewed as decisive. Notwithstanding the reservations that arise from the influence of Mr Andersen, and the way both parents have involved the child in the parental conflict, and the limitations on the child’s ability to have a realistic understanding of the potential long-term consequences of his decisions, it is understandable why the child has expressed his preference to remain in New Zealand. There is a rationality and reasonableness that attaches to his choice that is readily discernible when regard is had to what is known about his likely comparative situation in the United States. It needs to be emphasised that it is not this Court’s function, in the context of the present issue before it, to make decisions about the

⁴⁷Care of Children Act, s 4(4); Re E (Children) (Abduction: Custody Appeal), above n 9, at [14].

[147] Accordingly, because of the relative stability the child has experienced over the last 20 months which includes him being well-settled at his school, where he is reportedly doing very well, and his home environment in which he feels safe and secure, this status quo should be maintained in the interim. A continuation of present care arrangements and the predictability they offer will benefit the child and minimise risks to his social and emotional wellbeing that arise from being removed back to the United States, as least until the current dispute between his parents is determined. I therefore exercise my discretion to refuse to order the return of the child to the United States.

[148] The appeal is allowed. The order made in the Family Court, pursuant to s 105(2), that the child be returned to the United States, is quashed.

[149] An application made by Dr Lewis pursuant to s 68 of the Act was apparently transferred to this Court because of the appeal. I direct that the matter be transferred back to the Family Court which will now have to address Mr Andersen’s application for a parenting order that was suspended pending the outcome of the Hague Convention proceeding.

[150] Costs are reserved as I did not hear the parties on the issue. In the event costs are sought and cannot be agreed, I direct as follows:

[151] I will then deal with the issue of costs and disbursements on the papers unless I require the assistance of counsel.

High Court of New Zealand Decisions

Andersen v Lewis [2023] NZHC 390 (3 March 2023)