New Zealand has the worst rate of family and intimate-partner violence in the world.
A Kiwi mother fled New Zealand with her three young children while her husband was at work, to get away from a marriage punctuated by abuse. But she has now been ordered to return her tamariki to their father - despite an Australian judge conceding he had exposed them to family violence.
The order was made under the Hague Convention - an international agreement that helps children return to the country they usually live in if they’re taken or kept overseas, so that parenting arrangements can be made. Senior journalist Anna Leask reports.
Alice had tried to get away from the marriage before - even contacting the police and Women’s Refuge for help.
Taking the kids to live with her family in Australia seemed like her only option to get away from Ben, who she said subjected her to assaults, financial and emotional abuse and controlling and coercive behaviour.
“There had been three significant separations during our marriage, which I consider failed attempts at escaping,” she said.
“My hope was (in fleeing) that I would have the opportunity to start fresh and break away from his control, (that) my children would no longer be exposed to a hostile home life.”
Alice took her kids to Australia while her husband was at work. She felt there was no other option for her to escape her abusive marriage. Photo / 123rf
Last year, Ben applied for the return of the children under the Hague Convention.
Alice said she was “terrified” and initially agreed to bring the kids back - thinking she had no other option.
But, after taking legal advice she decided to mount a “grave risk” defence to the application, saying returning the children would expose them to “physical or psychological harm or otherwise place the children in an intolerable situation”.
What happened in court?
A two-day hearing was held last month in Australia, where Alice and Ben both presented their case.
Their names and any specifics of the case that could identify them or their children cannot legally be reported. Their names have been changed in this story to adhere to the law.
Alice outlined the abuse she had been subjected to - giving the judge examples - and raised “a litany of complaints” about his parenting.
She also believed Ben had, throughout the marriage, embarked on “a deliberate campaign to undermine her and her parenting” that included constant criticism and gaslighting.
Alice said her husband was violent, controlling and abusive throughout their marriage. Photo / File
Ben denied the majority of Alice’s claims, telling the judge that she was “volatile, quick to anger, lacked emotional regulation” and was usually the aggressor in any conflict.
But he “readily made concessions against self-interest, without apparent hesitation” regarding some family harm incidents.
He even told the judge he was willing to foot the bill for the children coming home, and if Alice came with them he would vacate the family home for three months while she got resettled.
If Alice did not return he was willing to raise the children alone.
The judge released her decision five days after the hearing.
“On either parent’s evidence, their relationship was conflictual, punctuated by frequent separations and reconciliations, and marred by acts of family violence,” she said.
“Each parent contends that the other parent was the aggressor, and that they were the victim.”
She said both parents had tried to provide honest and genuine information - but she felt some of Alice’s evidence was “coloured by her desire for her and the children to remain in Australia”.
The judge said it was not for her to decide how the children should be parented or their custody managed - her task was to assess whether they would be exposed to grave risk as defined under the Hague Convention if she ordered their return to New Zealand.
She said Alice did not have to prove “certainty” of harm, but did have to provide “compelling and clear” evidence of “substantial” harm.
Alice and Ben's relationship was punctuated by family harm incidents, with police often being called. Photo / 123rf
“The risk to the child must be grave. It is not sufficient for the risk to be real,” she said.
She accepted Alice and Ben’s relationship involved regular altercations, shouting, screaming, and physical incidents, which have seen regular police intervention.
“The police have been called on multiple occasions, and issued protection orders, for the benefit of each parent,” she said.
“Simply being satisfied that there have been incidents of family violence, does not automatically result in a finding that return would pose a grave risk.”
The judge said most of the incidents occurred while Alice and Ben lived together; “at times when their relationship was plainly unhappy”.
The fact they were now separated and had no intention of living together again provided a “significant protective factor”.
“The primary risk to the children... appears to be further exposure to their parent’s conflictual relationship. On the basis that the parents have separated, I am satisfied that the children are not at risk of being exposed to family violence.”
She said Alice had not produced any evidence to demonstrate that family violence protection mechanisms in NZ - including police, the courts and Oranga Tamariki - were inadequate, or insufficient to ensure the safety of her children.
The judge accepted that if she ordered the return of the children and Alice chose not to go with them, they would be upset and distressed and experience disruption and anxiety by being separated from her.
The judge accepted the children had been exposed to family harm incidents while Alice and Ben were living together in the past. Photo / 123rf
“There is no cogent evidence to suggest that she would be unable to mitigate any potential risks allegedly posed by the father, through utilising the various channels which are open to her,” she said.
“Even if I were to accept (Alice’s) evidence, taking her case at its highest, I am confident that the NZ authorities are appropriately equipped to make suitable arrangements for the children’s welfare.”
She ordered the children be returned to NZ by April 11.
When Alice learned of the decision she said she fell to her knees in “numbness and terror”.
“I sat with heavy guilt, feeling like I could no longer protect my children... I am terrified, angry and frustrated… Essentially this is not about the return of the children, this is about control,” she told the Herald.
“Their father is angry about my escape. I think even with all the efforts I’ve made to advise authorities and agencies of the possible return, it is being ignored how unpredictable and motivated he is to hurt me... I cannot accept so easily that they will be returned to the arms of a man who exposed them to (abusive) behaviour.”
Alice said the court process was harrowing.
“Being cross-examined was tough on its own but having to sit quietly and hear my abuser minimise the impact his behaviour has had on myself and the children was the worst part,” she said.
Alice said she was numb and terrified when she got the call with the judge's ruling. Photo / 123rf
“Her Honour refused to apply the legislative change made in 2022, which allows abuse and domestic violence to be considered when making a ruling under The Hague Convention. I think this decision is appalling… there is clearly a residual risk for further exposure to abuse.
“We cannot acknowledge abuse of any kind and then proceed to ignore what that means for victims.
“As a mother, I cannot erase the past experiences from my children’s memories but moving forward, my instinct to protect and prevent further trauma is undefeated. This cannot be justice.”
Alice felt her experience of family violence was “minimised” in court, which was proof the Hague Convention was unfit for purpose in 2024.
“Should it be the discretion of a judge to determine whether or not abuse of any kind is ‘bad enough’?” she said.
“The convention is not set up to reunite foreign fathers with their children, it enables post-separation abuse. I have no doubt that in the 80s (the convention) may have been legislatively appropriate but it needs to change.”
Alice said her experience so far has been “horrifying” and she wanted to protect other mothers going through the same.
