A NZ woman is stuck in Australia fighting a custody battle while her former partner resides in New Zealand. - Photo: RNZ
A New Zealand mother forced back to Australia under the Hague Convention is unable to return home while in a child custody battle - even though her former partner has done.
Sarah, which is not her real name, was forced back to Australia last year after fleeing the country with her children due to escalating mental and psychological abuse from her partner.
While the father had ordered their return to Australia through the child abduction agreement, he has since moved home to New Zealand, leaving the mother and her daughter stuck across the ditch because a no-fly order had been issued on their youngest daughter.
Sarah has been representing herself in the Australian courts after she was denied legal aid to fight the child custody battle.
She hasn't received any child support payments.
Her former partner initially sought for both of their daughters to return to Australia, the place of their habitual residence, through the Hague Convention.
The international treaty decides in which state a child custody case should be heard.
Sarah's eldest daughter, a teenager, refused to return because she didn't want to see her father, a right she has under the Convention.
However, the youngest daughter was ordered back and issued with a no-fly order as soon as she landed in Australia.
More than a year has passed since the court proceedings began, and Sarah said her former partner has now moved to New Zealand, leaving them in limbo.
"I've been trying and trying to get back, through mediation after mediation," Sarah said.
"At the moment I'm in another mediation process because my former partner has actually left Australia, and we're still sitting here on the no-fly list.
"He's left, and we're still here."
Sarah said the situation she's been left in is grossly unfair.
"He's allowed to represent himself from New Zealand, whereas I wasn't able to," she said.
"They said, 'your child will be taken off you if you don't return to Australia with her'."
Unless both parties agree to terminate the child custody case, it is likely to drag on into next year.
This is the fourth Hague Convention case RNZ has reported on in the past week.
The agreement was created in 1980 to force the return of a child when one parent takes them from their country of habitual residence.
Gina Masterton of Griffith University in Queensland is working towards a PHD, with her focus on the Hague Convention.
She said women are fleeing Australia in domestic violence situations because of a lack of support from the government.
"If you come here as a New Zealander for example, and you're not an Australian citizen, you get no access to Centrelink, no access to legal aid, no access to refuge because they use your Centrelink money to stay there," Ms Masterton said.
"So you're really at a disadvantage. You can work, if you can find a job, but you don't get any of the support from our government if you're not a citizen."
She said her research shows there are no other options for women in those situations.
"What I've found is that these women have already been through the system, they've already played by the rules, they've already got domestic violence orders and protection orders and court orders.
"This is a last resort for them, the leaving and putting some distance between themselves and the abuser."
Ms Masterton said about 70 percent of Hague Convention cases involved domestic violence.
Jeffrey Edleson from the University of California, Berkeley, is one of the world's leading academics on Hague Convention cases.
He said often domestic violence is completely disregarded when dealing with these cases.
"Of course when it gets into the court, many of these attorneys will say that domestic violence isn't written into the Hague Convention or the implementing legislation, so we shouldn't even talk about it," Mr Edleson said.
"So in many cases there is domestic violence, but it doesn't come into the court case."
Mr Edleson and Ms Masterton believe New Zealand should look at introducing new legislation for dealing with Hague Convention cases.
They think it's important to recognise that the risk of domestic violence to a mother puts a child into an intolerable situation.
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