QAMUS v ROWLEY [2017] NZHC 2260

QAMUS v ROWLEY [2017] NZHC 2260

The High Court held the s105 requirements were met and that the s106 exceptions were not established: on the evidence the child would not be exposed to a grave risk of psychological harm if returned to the United States without his mother, and the child's objection, while genuine and to separation from his mother, was not of sufficient weight to defeat the presumption of return; consequently the residual discretion was exercised to order return consistent with the Hague Convention and the Massachusetts court's prior custody findings.

Citation
[2017] NZHC 2260
Parties
Appellant (mother): Danielle Qamus (formerly Rowley); Respondent (father): Damian Rowley
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 September 2017
Procedural Posture
Hague Convention International Child Abduction Appeal Under Care of Children Act 2004 / High Court Appeal From Family Court Judgment Ordering Return (appeal Under S143)
Outcome
Appeal dismissed; return ordered
Legal Topics
Hague Convention Return Applications, Grave Risk of Psychological Harm, Child Objection to Return, Application of Care of Children Act 2004 (ss105 106, S115), Recognition of Foreign Custody Decisions
Family Law International Law Child Abduction Procedural Law Hague Convention Return Applications Grave Risk of Psychological Harm Child Objection to Return Application of Care of Children Act 2004 (ss105 106, S115) +1 more

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Parties

Danielle Qamus (formerly Rowley)

Appellant (mother)

Damian Rowley

Respondent (father)

Procedural Posture

Hague Convention International Child Abduction Appeal Under Care of Children Act 2004 / High Court Appeal From Family Court Judgment Ordering Return (appeal Under S143)

Legal Issues

  1. 1 Whether s105 criteria for return were satisfied
  2. 2 Whether any s106 exceptions applied (statute of limitations/settlement, consent/acquiescence, grave risk of harm, child objection, human rights)
  3. 3 Whether the child would be at grave risk of psychological harm or placed in an intolerable situation if returned without the mother

Ratio Decidendi

The High Court held the s105 requirements were met and that the s106 exceptions were not established: on the evidence the child would not be exposed to a grave risk of psychological harm if returned to the United States without his mother, and the child's objection, while genuine and to separation from his mother, was not of sufficient weight to defeat the presumption of return; consequently the residual discretion was exercised to order return consistent with the Hague Convention and the Massachusetts court's prior custody findings.

Court Disposition

Appeal dismissed; return ordered

Orders

  • Appeal dismissed
  • Matter referred back to the Family Court to make appropriate arrangements for Victor's return to the United States