The Ex-Files: Mum brought kids to NZ without her husband and doesn’t want to take them back to Australia

The husband will probably be furious when he finds out his wife has no plans to return to Australia with their children. Photo / Getty Images

OPINION

Q: I have been living in Australia for the last seven years with my husband, who manages a resort there. Our two daughters were born in Australia and are now 2 and 4. My relationship with my husband has deteriorated in the last year or so.

He spends long hours at work and often chooses to go out drinking in the evenings rather than returning home. The situation is making me depressed.

My daughters and I flew back to New Zealand three weeks ago for a holiday and to visit family. Since being back in New Zealand, I have decided to separate from my husband. I really do not want to go back to Australia and I do not consider this would be in the girls’ interests.

My employment prospects and the schooling options are much better here. I anticipate my husband will be furious when he finds out I have no plans to return with the children to Australia and he will likely seek legal advice. What is the legal position and what do you suggest I do?

A: Where the children live is a guardianship issue. You will need to obtain your husband’s consent for the children to remain in New Zealand.

If your husband does not consent to the children remaining in New Zealand, then your options are:

To ask a lawyer in Australia whether you could obtain an order in Australia allowing you to relocate the children back to New Zealand. And also ask him what your prospects of success would be; or

Remain in New Zealand with the children and see whether your husband requests their return to Australia under the terms of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).

New Zealand and Australia are both signatories to the Hague Convention. New Zealand has adopted the terms of this convention into our legislation. In a nutshell, signatory countries work together to have a child returned to the place where they are “habitually resident” if they have been wrongfully removed.

In theory, Hague Convention cases are not about the court trying to determine the long-term care arrangements for the children but to return children to the country which is the appropriate forum for these decisions.

Your husband would need to satisfy the jurisdictional requirements for an order. These include that he was exercising custody and the children were “habitually resident” in Australia. As the children have spent all their lives in Australia and resided with your husband, he would have no difficulty satisfying these requirements.

There are defences available to parents in your situation. These include that:

The child is now settled in the new environment; or

The other parent consented or acquiesced in the removal of the child; or

There is a grave risk that returning the child would expose them to physical or psychological harm or otherwise place them in an intolerable situation; or

The child objects to being returned and has reached an age/maturity where it is appropriate to consider their views.

The available defences largely do not apply, except for possibly the third that I have outlined above.

However, the threshold for this defence is high. You need to provide evidence of a grave risk to the children.

The case law indicates a “substantial risk” is not sufficient. Based on your comments, there is nothing to indicate that there is a risk that the children would be subject to physical or psychological harm were they to return to Australia.

The court may determine that an intolerable situation arises for the children if the impact of returning on the parent will have a very detrimental impact on their parenting. Although returning to Australia would be difficult for you, it is still unlikely to meet this threshold.

Jeremy Sutton is a barrister and family lawyer at Bastion Chambers.