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A mother has won a three-year legal battle to keep her children in New Zealand, despite being told by every family lawyer she talked to that her case was "hopeless".
In a groundbreaking case, the full bench of the Supreme Court has ruled that the interests of the children under the new Care of Children Act outweigh New Zealand's obligation to return the children to their father in Australia under the Hague Convention on International Child Abduction.
The judges quashed Family and High Court rulings in the father's favour and said Principal Family Court Judge Peter Boshier was wrong when he stated that the convention dictated "a presumption of return".
The convener of the Auckland District Law Society's family law committee, Vanessa Vette, said the judgment was "against the tide of previous authority in New Zealand".
In 1998, the New Zealand-born mother, then 37, began a relationship with the father, then 19, in Queensland. They had a daughter in May 1999.
"The father, who had had problems with alcohol and drug abuse for some time, started to become violent towards the mother soon after [the child's] birth," the court said.
The couple had a son, in May 2000, but separated soon afterwards.
Eventually the mother fled to a women's refuge, but the father broke in. The mother fled to another refuge, and then to South Australia, before moving to Hawkes Bay in February 2002 with her two toddlers.
The Family Court in Hastings made an order in 2004 to return the children to Australia because the father had joint custody and wanted access.
The mother said yesterday from Southland, where she now lives with the children, that her Hastings lawyer said there was "not much point in appealing because you won't win".
She could not find any other lawyer to take the case, and had no money to go further. But she refused to give up.
"I said, 'There's got to be justice, I'm not putting my children through more disruption'," she said.
She found an unlikely saviour in Parnell lawyer Alexis Hart, not a family law specialist, who saw the Family Court judgment only when the mother's Auckland-based brother consulted her on another matter. She agreed to take an appeal on legal aid.
"I thought, 'This is ridiculous and crazy', appealed it to the High Court and lost, and I thought, 'How could something so obviously wrong be upheld?' " Miss Hart said.
She went to the Court of Appeal and won this year. The father appealed.
Ms Vette said the Appeal Court decision was "widely reported in all the commentary on the Hague Convention" so experts were keenly awaiting this week's final Supreme Court ruling on the father's appeal.
The court has issued three documents - a majority judgment by three of the five judges, led by Justice Andrew Tipping, and two separate judgments, by Chief Justice Dame Sian Elias and Justice John McGrath. All ruled in the mother's favour, but for different reasons.
The majority found that there was "a duty" to return a child if the case came to court within a year of an abduction.
After a year, if the child had settled in its new country or if there were other grounds, the courts had discretion to weigh the Hague Convention against the child's interests.
The judges ruled these children's best interests would be served by staying with their mother in New Zealand.
All about the Hague Convention
A child wrongfully removed from a country must be returned to that country if the case comes to notice within a year of the abduction, unless there would be grave risk to the child or certain other conditions are met.
A child should be returned if the case comes to notice after a year "unless it is demonstrated that the child is now settled in its new environment".
NZ Supreme Court has found there is no "presumption of return" after a year if a child has settled or other conditions are met.
