A man who punched his infant son in the head and broke his leg and ribs has been told he will not be deported because it would not be in the best interests of his children.
Read the full decision by the Immigration and Protection Tribunal
Father-of-four Romeo Misipati faced being sent back to Samoa, after being released from a two-year jail term for grievous bodily harm with reckless disregard and ill treatment of a child.
Photo: RNZ
He appealed to the Immigration and Protection Tribunal, which said there was a strong public interest in not separating him from his partner and their children.
It suspended his deportation, which means he will not be deported as long as he does not commit an offence over the next five years that results in him being jailed.
Mr Misipati was jailed for two years in 2014, with the judge in the case commenting that child abuse in New Zealand was at "epidemic proportions".
The judge said evidence indicated a fracture to the three-month-old boy's skull would have involved considerable force, and that the child's femur injuries were a "very unusual type of fracture" almost never seen outside the context of child abuse.
The rib injuries were described as "highly corroborative of child abuse".
However, the tribunal concluded that, given the potential length of the sentence available to the judge, it appeared the offending was at the lower end of the scale.
It said it also needed to consider the best interests of Mr Misipati's children, in the context of the public interest - in general - in the preservation of family unity.
CYF says it wasn't told about prison release
Child Youth and Family (CYF) site manager Anna Palmer told the tribunal the agency was not informed when Mr Misipati left prison and moved back in with his children.
Ms Palmer said he was at home for a week last year before CYF ensured he moved out.
She said the children, who were all under the age of seven, were well cared for but the agency considered there to be ongoing issues that required intensive intervention.
The most pressing issue was "around a lack of insight about how serious the injuries to [the child] were and how the consequences of the offending could have been much greater".
Ms Palmer said she envisaged - assuming ongoing co-operation from Mr Misipati and his family, and that he continued to interact with counselling in a positive way - that he would gradually be reintegrated into the family home over a period of months.
Corrections Minister Judith Collins said CYF should be informed when a person convicted of a child abuse offence is released from prison.
Ms Collins told Morning Report she would be asking the department today to ensure it tells the agency when a child abuser is released, even when a prisoner is not intending to return to the family home.
Listen to Judith Collins
"I think they should be advised anyway because there's probably some sort of privacy concerns but I think we should just change it because people who say they're not going to go to their family home then suddenly do end up at the family home."
She said there was no point blaming CYF for child abuse it misses if it is not given information.
The Department of Corrections said it has no automatic procedure for advising CYF and in the case of Mr Misipati a probation officer told the agency.
Corrections central regional commissioner Terry Buffery said it had a protocol for reporting child abuse, but that did not cover letting CYF know when prisoners were released.
Psychologist's evidence
Greg Woodcock, a clinical psychologist, told the tribunal he was not a child psychologist and acknowledged he had not met the children.
But he said from the transcripts of Child Youth and Family interviews with the children, he "detected an underlying trauma and the sense of children who were attached to their father and who were missing him".
He said children in general benefited from a positive male role model and described the risk of further violent offending as being at the low end of the moderate range.
The Crown lawyer said Mr Woodcock was not a child psychologist, the brief he was given was not expressly related to the predicament of the children (although it should have been) and he did not meet with them personally.
Minister opposed appeal
Immigration Minister Michael Woodhouse opposed Mr Misipati's appeal.
Counsel for the minister told the tribunal there were no exceptional humanitarian circumstances that warranted allowing Mr Misipati to stay. She said family separation was not in itself sufficient to meet that threshold.
However the tribunal said deportation was likely to bring to an end a strong and stable relationship between Mr Misipati and his partner that had lasted nearly a decade, and interrupt the relationship between him and his four children at a time of fundamental importance to their development.
Deportation would compound rather than ameliorate the negative impact upon the children of the appellant's offending.
Mr Misapati's partner, Sophia Silva, initially lied after her baby was hurt, claiming it happened when she slipped in the bath with her baby.
Ms Silva said that it would break her heart if the appellant had to return to Samoa. The tribunal noted: "She loves him and finds life extremely difficult without his practical and financial support.
"She believes they have a good chance of a secure future together because Child Youth and Family has a plan that would assist the family to reunite."
The tribunal noted the Supreme Court had recently cautioned the risk of re-offending is only one aspect of the public interest and should not be applied rigidly.
Child protection charity For The Sake Of Our Children Trust said it was the right decision not to deport the father.
Trust manager Rachel Afeaki Taumoepeau said the family's story was similar to many throughout New Zealand and it was overdue for the public to hear of a successful intervention of family restoration by CYF.
She said Mr Misipati could do good now by working with CYF and supporting parenting programmes to share his story with immigrant communities and the lessons he has learned.