RED v RED [2016] NZHC 340

RED v RED [2016] NZHC 340

The High Court dismissed the appeal and affirmed the Family Court: the mother failed to establish the high threshold of a grave risk of physical or psychological harm or an intolerable situation on return, and the children's objections (particularly W) were given little weight because they lacked sufficient maturity and were heavily influenced; therefore Convention policy requires return to Australia where the Australian courts and agencies can address protections and custody.

Citation
[2016] NZHC 340
Parties
Applicant/appellant (mother): N R Red; Respondent (father): T Y Red; Children: Children
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 March 2016
Procedural Posture
Hague Convention Child Abduction Return Application Under the Care of Children Act 2004 / High Court General Appeal Under S143 Against Family Court Orders for Return
Outcome
Appeal dismissed; Family Court orders for return of the children to Australia upheld
Legal Topics
Hague Convention Return, Grave Risk Defence (s106), Child Objection and Maturity (s106(1)(d)), Evidence and Credibility, Implementation of Return Orders
Family Law International Child Abduction Child Welfare Hague Convention Return Grave Risk Defence (s106) Child Objection and Maturity (s106(1)(d)) Evidence and Credibility Implementation of Return Orders

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Parties

N R Red

Applicant/appellant (mother)

T Y Red

Respondent (father)

Children

Children

Procedural Posture

Hague Convention Child Abduction Return Application Under the Care of Children Act 2004 / High Court General Appeal Under S143 Against Family Court Orders for Return

Legal Issues

  1. 1 Whether the children were wrongfully removed and should be returned under the Hague Convention/Care of Children Act
  2. 2 Whether mother established a grave risk of physical or psychological harm or an intolerable situation (s106(1)(c)(i)-(ii))
  3. 3 Whether children, particularly W, objected and had sufficient age and maturity to have their views determinative (s106(1)(d))

Ratio Decidendi

The High Court dismissed the appeal and affirmed the Family Court: the mother failed to establish the high threshold of a grave risk of physical or psychological harm or an intolerable situation on return, and the children's objections (particularly W) were given little weight because they lacked sufficient maturity and were heavily influenced; therefore Convention policy requires return to Australia where the Australian courts and agencies can address protections and custody.

Court Disposition

Appeal dismissed; Family Court orders for return of the children to Australia upheld

Orders

  • Appeal dismissed
  • Orders made by Judge Turner requiring the return of the children to Australia remain in place