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The mother and the father were living in Australia with their son, H. Following the break-down of their relationship, the mother moved to New Zealand with H, then aged 2 and a half. The New Zealand Central Authority applied to the Family Court on behalf of the father for an order for the return of H to Australia under the Care of Children Act 2004 (the Act).  The Family Court was required to order the child's return to Australia under s 105 of the Act, unless one of a limited number of exceptions set out in s 106 applied. Sections 105 and 106 of the Act implement in New Zealand arts 12 and 13 of the Hague Convention on the Civil Aspects of International Child Abduction (the Convention). The Family Court declined to order H's return as an exception was made out under s 106(1)(c)(ii)- there is a grave risk that the child's return would place the child in an intolerable situation. The father successfully challenged that determination in the High Court, where the Judge found that the s 106(1)(c)(ii) exception was not made out and ordered that H be returned to Australia. The mother appealed to the Court of Appeal of New Zealand.

The court allowed the appeal and refused to order the return of the child.

Grave Risk - Art. 13(1)(b)

The court found that there was a grave risk that the return of H to Australia would place H in an intolerable situation.

The impact of return on the abducting parent may be relevant to an assessment of the impact of return on the child. However, the test focuses on the child's situation.

The Court of Appeal found that if the mother returned to Australia, her financial and housing situation would be precarious. The mother would be living in proximity to the father, whom she fears. The father's convictions for assaulting the mother and breaches of family violence orders and bail conditions provided substantial objective support for those fears, and confirm that the orders the Australian courts have made and may in the future make cannot provide an assurance of effective protection of the mother. The mother would be isolated in Australia with no family or close friends; support from social sector agencies is likely but can only go so far. In these circumstances the Court found that there was a grave risk of a deterioration in her mental health and/or recurrence of alcohol abuse which would seriously impair her ability to provide care for H and function as an effective parent. That would give rise to an intolerable situation for H. While there may have been other possible arrangements for H's care in Australia, a scenario where the mother (his primary carer throughout his entire life) is incapable of functioning as an effective parent due to a deterioration in her mental health and/or recurrence of alcohol abuse, would be intolerable for H.