Mother who won significant ruling in Hague Convention case continues legal fight

By Ben Strang of RNZ

A mother says the Government has spent hundreds of thousands of dollars paying for her abusive former partner’s legal claims.

Jane, whose identity is suppressed, won a significant international child abduction case in the Court of Appeal in April 2020.

Despite the ruling, which included provisions for the Australian-based father to have access to his child - provisions he failed to use - the father went back to court again in late 2021, seeking access to his child.

When the case was set to be thrown out because the father failed to adhere to demands from the judge, he filed a new claim, this time seeking video contact with his child.

The mother said she had now been fighting through the courts for about five years, adding to the abuse she had already suffered during the relationship.

The court action from her former partner is all funded by the Government.

“Every six months or so, [he] files more legal action against me in the Family Court,” Jane said.

“This is being paid for by the New Zealand Government under the Hague Convention, instigated by the New Zealand Central Authority, who work for our Ministry of Justice.

“I have to pay for my lawyer. New Zealand pays for his. He doesn’t comply with any court orders, he often waits until one or two days before his application is going to be struck out.

“He’s doing this as a form of coercive control. He’s using the legal system to keep me under his power and control.”

Jane - who has a Masters degree in social work and has co-founded a charity to support people caught up in Hague Convention cases - said her former partner was not really filing for access to his child. “This is about domestic abuse using the legal system. This is facilitated by the Hague Convention.”

Justice Minister Kiri Allan. Photo / Mark Mitchell

The Central Authority is the body which must administer the Hague Convention in the country of a signatory of the international law.

In New Zealand, the Central Authority is run by the Secretary of Justice, Andrew Kibblewhite.

The Central Authority has an obligation to bring legal action launched through the Hague Convention. It cannot dismiss claims from a parent out of hand.

Justice Minister Kiri Allan said the courts could dismiss cases, including Hague Convention proceedings, “if it is satisfied that the proceedings are frivolous, vexatious or an abuse of the proceedings of the Court.”

But the matter is more complicated because the case is technically brought by the Central Authority, and not by the individual in another country.

Allan said Hague Convention cases, and Family Court cases could be very complex.

“As a minister of the Crown, I am not able to comment on individual cases, but in general, I would like to acknowledge any hurt or harm a parent, caregiver or child may have experienced when dealing with the Family Court system,” Allan said.

“The Hague Convention aims to protect children from the harmful effects of their wrongful removal or retention by ensuring their prompt return to the country where they usually live. As was the situation in the case you reference, a court can refuse to order a child’s return if it would expose the child to physical or psychological harm, or place the child in an intolerable situation.

“However, the Convention also recognises that, subject to the best interests of a particular child, interruption to access/contact between the non-primary parent and the child should, where possible, be avoided, minimised and rectified.

“It encourages States to consider what appropriate access/contact and communication should take place and take steps to remove, as far as possible, obstacles to exercising access rights.”

Jane said the Court of Appeal had laid down a path to access for the father, but reiterated that he had not used those provisions in the year between the Court of Appeal ruling and his further legal action seeking access.

“There has been no contact at all,” she said. “He hasn’t tried to have contact even once, until I got told I had to come back to court.”

After the initial hearing, the judge ordered the father to write his child three letters over a six-week period - a gateway to more sustained contact with the child.

But the father only submitted one letter during that time, failing to comply with the judge’s orders.

Days before the court was set to meet again, the father filed for further access through the courts, this time seeking supervised video contact with the child.

The father had also ignored court orders during previous cases.

In the Court of Appeal, he was ordered to provide his criminal record, any previous charges laid against him, and court documents to back up claims he had made in the previous High Court case.

He failed to provide any information to the court.

Jane said he had a pattern of not complying with court orders, and of wasting the court’s time.

“This is a shocking and abusive use of New Zealanders’ hard-earned taxes,” she said. “I am disgusted that this man has potentially cost this country hundreds of thousands of dollars and continues to do so.

“He has been collecting money without any background checking or vetting whatsoever for five years now, with no end in sight.”

The justice minister confirmed applicants in Hague Convention cases did not have to pay back the legal fees, and that the applications by the father in this case would be paid for by the government.

Between 2018 and 2021, the Government spent $633,208 fighting Hague Convention cases on behalf of overseas applicants.

A large proportion of that is expected to have gone to this father.

Allan said she was “satisfied that the [Hague] Convention is working as intended”.

“And I am confident in the ability of the judiciary to dismiss any proceedings it considers vexatious or an abuse of court procedure.”