This is a nightmare scenario that is common to international women living under the shadow of domestic violence in Australia.
New Zealand women in particular face a unique set of circumstances that pose major obstacles in enabling them to avoid partner abuse.
Under the general visa 444, 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 funds to leave, many people as a last resort flee back to New Zealand, but can then be forced back by their abusers to Australia.
The legal instrument is the Hague Convention, which prevents children from being carried across the border illegally, and is primarily judged on the black-and-white fact of a border crossing, not mitigating circumstances.
Risk of serious harm
A case earlier this year uncovers the tragic and torrid story of a New Zealand mother and child caught in a nightmare of domestic violence in Australia, with no choice but to run away.
The Court of Appeal in New Zealand heard how the perpetrator, an Australian man, had multiple sentences for assault and breaching a protection order.
Tasmanian child protection services have files about families running across “several hundred pages”, the court heard.
The risk of harm to children – boys born in 2015 – is rated by protection services on a scale of 0 to 10 as “approx. 8”.
In 2017, the mother fled to a shelter and then to her homeland in New Zealand, unable to access financial support because of her visa status and returned to a place where she could get state aid, and support from her family.
The New Zealand lawyer working on the case, Daniel Vincent, has seen this scenario several times before.
“Of course there are problems for New Zealanders in Australia accessing support there, whether it be housing or financial support benefits, because of the limitations associated with their visas,” he said.
Lawyers and experts say the Hague Convention, which was signed by many countries including Australia 40 years ago on 25 October 1980, is outdated and used as a weapon of harassment, control and entrapment.
It was designed to stop men, who traveled more and more in the 1970s, from kidnapping children after breaking up and taking them to their home countries, where mothers would never see them again.
Now, it’s more commonly used against women, who make up more than 70 percent of runaway parents, according to The Hague
Globalarrk, a charity that supports families in the The Hague case, said its research showed 91 percent of the women in the Hague case had experienced abuse.
More than a third of Hague applications in Australia relating to a child taken abroad are for New Zealand – in the 2017/2018 financial year, there were about 30 cases according to the Attorney General’s Department.
The case of the woman who fled Tasmania has had tremendous results, however, in a decision that could affect future cases.
The court ruled in April that the mother could stay in New Zealand, nearly three years after her mother fled.
Vincent said he hopes the case shows how “unfair” the scenario is.
“We feel that if the spotlight is put on this, right-minded people will feel the same anger at how difficult it is for people with children in Australia who can’t access support there, and then be forced back into that. [abusive] environment with the operation of the Hague convention, “he said.
“The Hague Convention ended up being used as an instrument by abusive and controlling partners to bring victims back in their control because that person became dependent on them, for financial support.
Call for legal assistance and benefits
The mother has struggled for legal aid, which requires due diligence that the case will be won, usually meaning that the “taking parent” is not eligible because under The Hague they have undeniably “wrongly” moved the child – and vice versa, abandoned parents usually get it.
“The irony doesn’t disappear with us that dad can get legal help to appeal in a country he hasn’t even been to. Even though my client cannot get legal assistance for the very sad situation in Australia, ”said Vincent.
However, the importance of court decisions is that they go beyond the traditional assumption that the best interests of the child will be served promptly back and accept the defense that repayment will be a “great risk of psychological and physical harm or an intolerable situation”.
This defense is included in The Hague regulations, but rarely works because it is not required to account for domestic violence against its mother.
“What the appellate court is doing is acknowledging the psychological dangers for a child in being in a violent environment in the country – so there is no need to physically abuse the child directly,” said Vincent.
Both points, said Vincent, “will support the way the Hague convention case is resolved in New Zealand over the years”.
He said the way to improve the way cases are handled under the Hague Convention is to interpret them as “living documents”.
He also said it must ensure that those forced to return under The Hague’s orders can access legal aid and benefits.
“If anything can be brought in, especially in Australia, it seems, where protecting children and providing them with money is a problem, that’s fine,” he said.
The Australian Attorney General’s Office did not respond directly to questions about legal aid funding for “taking” parents, but said “people who experience, or are at risk of, family violence and their children are identified as the national priority client group for services.”
The problem of government ‘admitting’
A New Zealand Department of Foreign Affairs spokeswoman said it was regularly communicating with the Australian Government about the plight of New Zealanders facing domestic violence.
It said their concerns had been “acknowledged”.
“We are aware of the difficult situation some New Zealanders face who are subject to an Australian Family Court ruling and are unable to leave Australia with their children, who may also have limited access to Australian social support payments, despite living and working there for many. people. years, “said a spokesman.
It said the Australian Government had granted an exemption to the income threshold when applying for permanent residence under a 189 visa, for New Zealand citizens who were unable to leave the country due to a family court decision.
But the person has to live here for five years, and it costs $ 4,045, with a processing time of 15 to 25 months.
Responding to a question about the circumstances facing New Zealanders in Australia, the Department of Home Affairs said: “New Zealand citizens, permanent residents and eligible New Zealand citizens can sponsor partners to Australia through the Partner visa program.”