KEY POINTS:
A mother whose two children have been ordered to return to Australia where their father lives has lost an appeal against the ruling, even though the father has a protection order issued against him.
The Court of Appeal judgement released yesterday upheld rulings made by the Family Court and the High Court that the two young children must be returned to Australia pending a custody battle.
Both parents are New Zealanders. Their older son was born here and the family moved to Australia the following year, where their daughter was born.
After they separated early last year, the mother took the children to New Zealand without the father's knowledge, and obtained a protection order against him for herself and the children.
The children were subsequently ordered to return to Australia by the Family Court and the High Court under the Hague Convention, which says children must be returned to their normal residence when court action over custody is pending.
The mother appealed the High Court ruling in the Court of Appeal on the grounds that the children should have had a lawyer and there were errors in court proceedings.
The Court of Appeal dismissed her appeal.
It said it was a complication that she had taken out a protection order against the father in New Zealand, which could be extended to Australia, because it would mean the children could not live with their father.
However, that and other factors including possible financial difficulties in Australia did not meet the high threshold of establishing grave risk of an intolerable situation, which meant the court could not rule against the Hague convention guidelines, the Appeal Court found.
It said separation causing psychological harm was not an issue because it was most likely that the mother would return to Australia with the children.
The court said it was likely she could obtain financial support in Australia if it was necessary, although she did not qualify for a parenting benefit.
It also said her initial stay in Australia may be brief.
"If adequate financial assistance is not available, we hope that the Australian courts will facilitate an urgent hearing... or allow the applicant and the children to return to New Zealand on the applicant's undertaking to return with them when required."
The mother had two older children that she could not take out of New Zealand because of a court order granted to their father, who is currently serving a jail sentence.
However, her parents lived in New Zealand and it seemed likely, despite some health problems, that they could look after the older children in the short term at least while she returned to Australia with the younger children, the court said.
The court said it agreed with the High Court decision and that a lawyer for the children had not been necessary.
- NZPA
