The Ex-Files with Jeremy Sutton: Do I have to send my children back to Australia?

My children and I are now settled in New Zealand but my ex wants them to return to Melbourne.

Q: My ex and I separated two years ago. We have three children aged 17, 14, and 10. Before we separated, we had been living in Melbourne for several years. After our separation, I went home to Auckland with the kids to have the support of my family and to help my mother, who was sick. We have been living in Auckland for 18 months. I have a job, and the children have been going to school. My ex is still living in Melbourne. He talks to the kids on the phone regularly and has visited once. Even though the move to New Zealand wasn’t meant to be permanent, my ex hasn’t raised any problem with the arrangements until now. He says he wants the children to come back to Melbourne and that he never agreed to them staying in Auckland. The kids don’t want to go back to Melbourne. They are settled at school and have friends and activities. They haven’t talked to their friends in Australia for a long time. They don’t have any family in Australia, but my family and my ex’s family are in New Zealand, and we see them often. I’ve told my ex we’re not moving back to Melbourne and now he’s saying he’s going to take me to court. What do I do?

A: Cross-border parenting disputes are common, with many families spending time overseas to pursue work and lifestyle opportunities.

In situations such as this, the Hague Convention on the civil aspects of international child abduction comes into play. The convention is an international treaty between contracting states, including New Zealand and Australia, which aims to return children under 16 who have been abducted or wrongfully retained by their parent overseas. The purpose of the convention is to secure the prompt return of children, and to ensure the rights of custody and access under the law of one contracting state are effectively respected in another contracting state. The convention is included in New Zealand law through the Care of Children Act 2004. Under those provisions, the court must make an order for the return of a child to that child’s state of “habitual residence” unless one of the exceptions apply.

The exceptions include: (a) that the application was made more than a year after the removal of the child, and the child is now settled; (b) that the person by whom the application is made was not actually exercising custody rights in respect of the child at the time of the removal, or consented to, or later acquiesced in, the removal; (c) that there is a grave risk of harm to the child if they are ordered to return; (d) that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate also to give weight to the child’s views; and (e) that the return of the child is not permitted by laws relating to the protection of human rights and fundamental freedoms.

The underlying focus will be the welfare and best interests of the children.

I’ve told my ex we’re not moving back to Melbourne and now he’s saying he’s going to take me to court. What do I do?

Habitual residence

The first issue would be whether the children are habitually resident in New Zealand or Australia. If they are habitually resident in New Zealand, then no order for removal could be made. If the children are habitually resident in Australia, then you would need to rely on one of the exceptions in Section 106 to prevent an order for return.

The assessment of habitual residence depends on the circumstances in a particular case. It is the habitual residence of the child that is relevant, not the parents, so the focus is on the child and the reality of their connection to the relevant state.

Age limit

As a starting point, no order could be made for your 17-year-old. An order for return can only be made for children under 16.

Court of Appeal

The Court of Appeal has recently considered a case like yours in which two children moved from Spain to New Zealand with their father for an agreed period of a year. After the year had passed, the children did not want to return to Spain so the father advised their mother they would not be returning. His retaining them in New Zealand constituted a removal for the purposes of the convention and Section 105, but the Court of Appeal considered no order for return could be made because the children were habitually resident in New Zealand. The lower courts placed undue weight on the fact that the move to New Zealand was not intended to be permanent, but the Court of Appeal noted that a child’s habitual residence could not be predetermined by an agreement between the parents or by an order of a court.

Settled

In this case, the children were well settled in New Zealand and had been attending school for over a year. They had close links with friends and family in New Zealand and were well integrated into their community through their social and sporting activities. The court considered their residence had the necessary stability to be described as habitual and that it was irrelevant that their residence was not necessarily permanent.

Children’s views

Even if your children were not considered to be habitually resident in New Zealand, one of the exceptions may apply to prevent an order for return. You have said your children do not want to return to Australia. If an application was filed, then the court would appoint a lawyer for your two younger children to ascertain their views and to understand the reasoning behind those views. The lawyer would assess whether their views were authentic or a result of parental pressure or influence. Certainly your 14-year-old is of an age where substantial weight should be given to their views. If they strongly object to moving back to Australia, then the court is unlikely to force a move against their will. Your 10-year-old is younger so the weight given to their views will depend on their maturity and their understanding of the situation. However, in most cases, the court would be hesitant to separate siblings. If no order for return is made, the court would want arrangements to be put in place to ensure a continuing relationship between the children and their father.

Conclusion

You should seek legal advice urgently. The above themes should help you with some of the issues.

Jeremy Sutton’s advice is of a general nature, and he is not responsible for any loss any reader may suffer from following it. He does not consider your individual situation. Before you make legal decisions, you should always get independent advice from a specialist lawyer.