It’s a fight in which a New Zealand court earlier ruled her children would be at risk of being in an intolerable situation if they were returned to their father and found their mother suffered from post-traumatic stress disorder as a result of physical and psychological abuse.
But a later court application by the father to uphold interim orders under the Hague Convention found in his favour.
The Convention is an international agreement between countries that assumes the courts in the country where the child usually lives are best able to make decisions about the child.
Plans proposed by her legal team, which she said his lawyers did not respond to, was for the girls to be handed over in a way that minimised distress.
“My lawyer called me and said, ‘How do you want to do this?’ And I said as smoothly as possible. They need to say goodbye to their friends, their cousins, their family, let their extracurricular activities know that they’re not going to be there because [one daughter] was due to be assessed to move up another level in swimming on Thursday.
“That’s going to be in the girls’ best interest, that’s how we want to do it and let them know, let us plan a date between [he] and I when I’m going to come over and do it all above board.”
An hour later, however, authorities were at her door asking for her daughters, the woman said.
“They’re crying going, no, ‘why are people here to take us?’”
While Maria held the girls close, her family member negotiated with the officials, pleading for them to stay out of the home while the family packed and said their goodbyes.
“I was told that if this happens, you have to suck it up for them like you’ve got to be okay for them, you can collapse after, but you’ve got to be okay for them because this is going to be harder for them than anyone.”
Once they got the go-ahead to help the girls pack Maria said she reassured them by saying things would be okay, telling them the weather would be nice in Europe, and that they would “have fun”.
In a witness statement about the uplift, one of the woman’s family members described the “moment of shock” and disbelief they shared when they realised her relatives were being removed in this manner.
“I have never heard the girls cry, sob, or cling to their mother like they did on that day. It was heart-wrenching to watch to see the devastation of trauma, the hurt and sadness on their faces, and to hear them crying. As an adult, this situation was hard to process. I cannot imagine how it must have been for two young girls.”
One of the girls’ cousins and their schoolmates arrived too late to say goodbye, she said.
“I cannot understand why [he] did not wait a couple of minutes to make this traumatic situation a little less stressful, and more tolerable, for two little girls to have a moment to say goodbye to their friends.
“As the car drove away with the girls I watched [the mother] collapse on the footpath. I will never forget the sound of her wailing, crying.”
Both the girls’ mother and the other family member believed the nature of the uplift was not in the girls’ best interest.
“It was just so cold, and brutal and inhumane, to deal with two little children in the way they did, rather than say ‘No, it’s all right. You’ve got time to wait for your friends’, the girl’s best friends were being picked up from school to come and say goodbye and [they] miss them by 30 seconds,” the mother said.
How it started
Maria and her children first returned to Aotearoa in 2020 for a holiday, and while they were scheduled to return in April the following year, changes to Covid requirements in Queensland meant they were unable to get on the flight.
The girls’ mother said she did not attempt to return again, telling the courts and the Herald she had suffered mental and physical abuse at the hands of her former partner, and the custody battle began.
In a High Court appeal, Justice Jan‑Marie Doogue quashed the Family Court decision ordering the return of the children to Europe.
The judge found there was a grave risk the children’s move to Europe would put them in an intolerable situation and found their mother suffered from post-traumatic stress disorder as a result of physical and psychological abuse.
An affidavit filed by the woman also contained messages she sent at the time to her sister about one instance of the alleged abuse.
Judge Doogue said the father did not address the incident or the contemporaneous record but denied any or all violence against the mother.
However, on February 14 this year the Court of Appeal found the children’s return would not give rise to a grave risk of an intolerable situation, because modified shared custody orders, admitted last minute, removed the possibility they would be separated from their parents for extended periods.
Adding salt to the wound, in her view, is the fact his legal case is being funded by the Central Authority, an agency that sits inside the Ministry of Justice that implements the Convention.
Maria’s lawyer, Parry Field partner Alex Summerlee, told the Herald the uplift was “appalling”.
“We all know that uplifts are unfortunately needed when a child is in a terrible home situation, and uplifting is the lesser of two evils. But this wasn’t some meth house where any child was in any danger. These girls had been in New Zealand for nearly 3 years, happy and doing really well.
“Why on earth would you put two little girls through the trauma of that kind of uplift when there was clearly no need for it?”
He believed the Hague Convention was a law built on two wobbly presumptions.
“First it starts by presuming that returning kids back to their home country is always the best way to undo the harm to children of being taken overseas in the first place. But it’s hard to see how that presumption is always right when a child’s main caregiver is fleeing domestic violence.”
Other countries like Switzerland and Japan, have amended how they apply the Convention, Summerlee said, and Australia made similar changes last year.
“Unfortunately, New Zealand hasn’t caught up with this – and it’s usually at the expense of mums and kids. This case is a sad example of New Zealand’s laws being stuck in 1980, and failing to keep up with the modern understanding of family violence.
Ministry of Justice acting general manager courts and justice services policy Megan Noyce said no changes to the existing law regarding the Convention are currently being considered.
Noyce said a court may refuse to order a child’s return under the Convention if it would expose the child to physical or psychological harm or place the child in an intolerable situation.
”Judges are well aware of such risks and assess applications under the Convention with that possibility in mind.”
Police were approached for comment however said questions were best directed to Oranga Tamariki.
The agency’s Canterbury regional manager Kellie Blyth said Oranga Tamariki was requested to assist in the movement of the children in accordance with directions of the Family Court Order for the return of the children.
“Oranga Tamariki has no other role with the case. Queries about actions taken in accordance with the Hague Convention on the Civil Aspects of Child Abduction should be directed to the Ministry of Justice as the lead agency.”
Lawyer Vivienne Crawshaw KC, who was representing the father at the time, declined to respond to questions about the uplift.
Maria said she felt betrayed by the New Zealand court system, and believed it was unjustified to take them in such an “unnecessary traumatic” way that she said they will never forget.
She believes the New Zealand justice system is not fit for purpose and lags behind other countries under the Hague Convention who she said offered greater protection for women.
“They weren’t being taken from a toxic home, or a bad home, they were being ripped from a primary caregiver.”
Now the case was out of New Zealand’s jurisdiction, all she can do is wait for the case to play out in European court.
“I just felt like I had no rights, it just felt like living in the dark ages after experiencing that.”
* Name changed for legal reasons
Katie Harris is an Auckland-based journalist who covers social issues including sexual assault, workplace misconduct, crime and justice. She joined the Herald in 2020.
