The New Zealand women trapped in Australia and imprisoned in abuse under the Hague Convention

26 October 2020

It’s a nightmare scenario that is a common plight for international women living under the shadow of domestic violence in Australia.

New Zealand women in particular face a unique set of circumstances that throw up enormous barriers in allowing them to escape partner abuse.

Under the common 444 visa, New Zealanders have the right to live and work in Australia, but because they remain citizens of their homeland, they are not entitled to government benefits.

When faced with domestic violence and without finances to leave, many as a last resort flee back to New Zealand, but then can be forced back by their abuser to Australia.

The legal tool is the Hague Convention, which prevents children being taken across borders unlawfully, and is predominantly judged on the black-and-white fact of a border crossing, not the extenuating circumstances.

Serious risk of harm

A case earlier this year revealed a torrid, tragic story about a New Zealand mother and child stuck in a domestic violence nightmare in Australia, with no option other than to flee.

A woman holds her head in her hands
New Zealand women are not always entitled to Australian government benefits.(ABC News: Margaret Burin)

The Court of Appeal in New Zealand heard how the perpetrator, an Australian man, had multiple convictions for assault and breaching protection orders. 

Tasmanian child protection services had a file on the family running at “several hundred pages”, the court heard.

The risk of harm to the child — a boy born in 2015 — was rated by protection services on a scale of 0 to 10 as “about an 8”.

In 2017, the mother fled to a refuge and then to her homeland of New Zealand, unable to access financial support because of her visa status and returning to a place where she could get state aid, and the support of her family.

The New Zealand lawyer working on the case, Daniel Vincent, has seen this scenario multiple times before.

“There certainly is an issue for New Zealanders in Australia being able to access support over there, whether that be housing or whether it be financial support benefits, because of limitations to do with their visas,” he said.

‘Sense of outrage’

Lawyers and experts say the Hague Convention, which was signed by multiple nations including Australia 40 years ago on October 25, 1980, is outdated and is used as a weapon of abuse, control and entrapment.

It was designed to stop men, who were increasing travelling in the 1970s, kidnapping children after a relationship breakdown and taking them to their home country, where the mothers would never see them again.

Now, it’s more commonly used against women, who constitute more than 70 per cent of fleeing parents, according to the Hague

Globalarrk, a charity that supports families in Hague cases, says its research shows 91 per cent of women in Hague cases have experienced abuse.

More than a third of Hague applications in Australia dealing with a child being taken out of the country are for New Zealand — in the 2017/2018 financial year, this was about 30 cases according to the Attorney-General’s Department.

The case of the woman who fled Tasmania has had a ground-breaking result, however, in a decision that could influence cases in the future.

The court ruled in April that the mother could stay in New Zealand, nearly three years after the mother fled.

Mr Vincent says he hoped the case showed how “unfair” the scenario is.

A man in black and white smiling at the camera. A man in black and white smiling at the camera.
Daniel Vincent specialises in family law and Hague Convention cases.(Supplied)

“We felt that if a spotlight was shone on this, right-minded people would share that same sense of outrage at how difficult it is for people who have children in Australia who are unable to access support over there, and then are forced back into that [abusive] environment by the operation of the Hague convention,” he says.

“The Hague convention ends up being used as an instrument by an abusing and controlling partner to require the victim to return within their control because that person becomes dependent upon them, for financial support.

Call for legal aid and benefits

The mother had struggled to get legal aid, which requires a merit test that the case will be won, usually means that the “taking parent” is not eligible because under the Hague they have indisputably “wrongfully” removed the child — so conversely, the left-behind parent usually gets it.

A stock image of a child hiding, looking upset. A stock image of a child hiding, looking upset.
Experts say the Hague Convention causes problems for the children it was meant to protect.(AAP: Dave Hunt)

“The irony was not lost on us that the father can get legal aid to conduct an appeal in a country he’s never even been to. Whereas my client could not get legal aid for a very desperate situation in Australia,” Mr Vincent said.

However, the significance of the court ruling is that it went beyond the traditional assumption that the best interests of the child would be served by an immediate return and accepted the defence that a return would be a “grave risk of psychological and physical harm or an intolerable situation”.

This defence is included in the Hague regulations, but it’s rarely successful as it is not required to take into account domestic abuse against the mother.

“What the court of appeal did was it recognised the psychological harm to a child of being in a domestically violent environment — so it doesn’t necessarily require violent physically against the child directly,” Mr Vincent says.

The two points, Mr Vincent says “will underpin the way that Hague convention cases are resolved in New Zealand for a number of years”.

A cartoon of a giant thumb over a group of womenA cartoon of a giant thumb over a group of women
Women are being left with nowhere to turn because of a “good law gone bad”.(ABC News: Emma Machan)

He said the way to improve the manner with which cases are dealt under the Hague Convention was to interpret it as a “living document”.

He also says it should be ensured those forced to return under a Hague order can access legal aid and benefits. 

“If something can be brought in particularly in Australia, it seems, where it’s a problem to protect kids and to provide financially for them, that would be good,” he said.

The Australian Attorney-General’s office did not respond directly to a question about legal aid funding for the “taking” parent, but said “people experiencing, or at risk of, family violence and their children are identified as a national priority client group for services.”

Government ‘acknowledges’ issues

A spokesperson for the New Zealand Department of Foreign Affairs said it had regularly raised with the Australian Government the plight of New Zealanders facing domestic abuse.

It said their concerns had been “acknowledged”.

“We are aware of the difficult situation facing some New Zealanders who are subject to Australian Family Court rulings and unable to depart Australia with their children,  who may also have limited access to Australian social support payments, despite often having lived and worked there for many years,” a spokesperson said.

It said the Australian Government had brought in an exemption for an income threshold when applying for permanent residency under the 189 visa, for New Zealand citizens unable to leave the country because of family court rulings.

But it required the person to have lived here for five years, and comes at a cost of $4,045, with a processing time of 15 to 25 months.

In response to a question about the circumstances facing New Zealanders in Australia, the Department of Home Affairs said: “Citizens, permanent residents and eligible New Zealand citizens are able to sponsor partners to Australia through the Partner visa program.”

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