Walpole & Secretary, Department of Communities and Justice [2020] was heard in the Family Court of Australia in Sydney.
The case dealt with the mother’s appeal of an order compelling her to return the children of the relationship to New Zealand. The mother’s appeal was granted and she was permitted to remain in Australia with the children.
In May 2019 the mother had left New Zealand with the two young children both born in New Zealand. The mother returned to Australia knowing the father, who was both born and residing in New Zealand, could not follow as he was banned from entering Australia. The father sought the children’s return to New Zealand.
As part of her defence the mother argued that if the children were returned to New Zealand that they would be exposed to a grave risk of physical or psychological harm. The primary judge accepted that there was a great need to protect the children from family violence. However he considered that the children would only be exposed to such risk if the children were returned to New Zealand and the parents resumed a relationship. As the mother gave evidence that there would be no resumption of the relationship (despite the parties having reconciled numerous times in the past) the primary judge found that the children would not be exposed and that the conditions for the return of the children according to the Regulations were satisfied.
The mother appealed the order arguing that if the children were to return they would be exposed to physical or psychological harm. She was also given leave to raise to a further defence that the children would be placed in an intolerable situation if returned to New Zealand. The mother’s appeal was opposed.
The mother was permitted to lead further evidence as to the father’s criminal history and family violence on appeal. The father had a substantial criminal history of increasingly serious charges in both New Zealand and Australia including possession of drugs and assault for which he had had period of incarceration. In 2010 he was convicted of contravening an apprehended domestic violence order. The father was ultimately deported from Australia and banned from re-entry. Evidence of the father’s criminal history, together with other factors such as the family consultant’s evidence at the primary hearing that there was evidence that the father possessed a potentially lethal threat to the mother upon who the children were dependent for support, led the Court to find that the mother had established the intolerable situation defence. In making the finding, the Court noted that the mother’s evidence as to the serious issues of risk and the children’s position in the family was better presented on appeal than in the primary hearing.
In matters when a defence is established, the Court still has discretion to return children. When considering this discretion, their Honour’s went onto say that given the father’s apparent lack of respect for the law and repeat terms of imprisonment, including breaching orders, that to attach conditions to a return order and to assume that such conditions would be honoured would “see hope triumph over experience”. The Court allowed the mother’s appeal.
The appeal hearing was further complicated by the global COVID-19 pandemic. At the time of the hearing, the Australian Government had issued a “do not travel” ban and both countries had imposed border closures. The appeal was allowed separate to this issue however the Judges noted that had the appeal been dismissed they would have required further submissions concerning any effect on the children and the mother being ordered to return to New Zealand in the present crisis.