AEP v KM
[2015] NZHC 380
•6 March 2015
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2014-409-641
CIV-2014-409-642 [2015] NZHC 380
UNDER the Care of Children Act 2004 AND UNDER
the Status of Children Act 1969
IN THE MATTER OF
an appeal against a decision of the Family
Court at ChristchurchBETWEEN
AEP Appellant
AND
KM
First RespondentAJP
Second RespondentATTORNEY-GENERAL Third Respondent
Hearing: 23 February 2015 Appearances:
S van Bohemen for Appellant
I Mitchell for Respondent
No appearance for Second Respondent
M Casey for Third RespondentJudgment:
6 March 2015
JUDGMENT OF MANDER J
AEP v KM [2015] NZHC 380 [6 March 2015]
[1] In 2007, the appellant, AEP, and the first respondent, KM, commenced a de facto relationship in New Zealand. In 2010, KM moved to Australia. AEP remained in New Zealand for a short period before joining him. In February 2011, while in New South Wales, AEP gave birth to a baby daughter, A. AEP and KM were registered as A’s mother and father on the birth certificate.
[2] In August 2013, AEP travelled to New Zealand with A. Two days later, AEP advised KM that she was not returning to Australia. Later that year, AEP advised the second respondent, AJP, that she believed he was A’s biological father.
[3] In February 2014, KM applied to the Australian Central Authority for the return of A to Australia, in accordance with the Convention on the Civil Aspects of International Child Abduction (Hague Convention).1 An application was subsequently made in the Family Court for an order for the return of A pursuant to s
105 of the Care of Children Act 2004 (the Act). AEP gave notice of her intention to defend the application on the basis that KM was not A’s natural father.
The paternity proceedings
[4] On 19 May 2014, at a directions conference before Judge Somerville, the application for the return of A was adjourned pending DNA testing. At that time, it was acknowledged by AEP that KM’s application would only be contested if it was established that A was not his natural child.
[5] Judge Somerville adjourned the matter for legal argument in the event that A proved to be the daughter of someone other than KM. Judge Somerville recorded that the matter was not to be set down for fixture “until a declaration of paternity has been made if the DNA evidence supports that”.
[6] On 26 May, the DNA testing returned a result which very strongly supported the proposition that AJP was A’s biological father. An application was subsequently filed by AEP under the Status of Children Act 1969, for declarations that AJP was A’s
father and that KM was not. In early July, AJP formally acknowledged the DNA
results and supported a request that his name be added to A’s birth certificate.
[7] The day after the acknowledgment by AJP, AEP applied for consolidation of the two proceedings and that the Hague Convention proceeding be stayed pending the outcome of her applications under the Status of Children Act. KM opposed the consolidation of the proceeding and the stay of his application for the return of A.
[8] On 15 July, a telephone conference was held with Judge Somerville. The result of the conference was that Judge Somerville set both sets of proceedings down to be called on 11 August. Judge Somerville observed that he did not anticipate the paternity proceeding being defended by either respondent and would, in any case, be able to deal with the matter by way of formal proof. Once the paternity proceeding had been disposed of, Judge Somerville recorded that the Hague Convention application would be called on the same date.
[9] When the matter was called on 11 August, the New Zealand Central Authority questioned the Court’s jurisdiction to hear the paternity proceeding before the Hague Convention application had been resolved. After hearing argument on the issue, Judge Somerville directed that the Hague Convention application should be decided first, and that the hearing of the paternity proceeding deferred. It is from that decision that this appeal lies.
The appeal
[10] AEP argued that Judge Somerville was estopped from determining which proceeding was to be given priority because he had already decided the issue. Secondly, she submitted, by reference to the Convention on the Rights of the Child (CROC), that the Family Court’s decision failed to give effect to the rights of the
child in a manner consistent with New Zealand’s international obligations.2 Thirdly,
that by applying s 109 of the Act to determine that the Hague Convention had priority, the Family Court had taken into account an irrelevant consideration. Finally, it was submitted that Judge Somerville was plainly wrong in his finding that
hearing the paternity application could potentially frustrate the operation of the
Hague Convention.
Res judicata and issue estoppel
[11] AEP submitted that the issue of which proceeding was to be determined first had been decided by the Family Court on 19 May and subsequently affirmed in its direction of 21 July 2014. Relying on the principle of res judicata, she submitted that it was not open to Judge Somerville to revisit his earlier decision. Reliance was placed on the observations of Fogarty J in Burgess v Beaven:3
[24] The concept of estoppel in this area of the law is quite simple. There is a famous dictum which combines both the reason for the doctrine and the doctrine. It is cited by Spencer Bower Turner and Handley, 3rd Ed at paragraph 10. It is a dictum of Maughan LC in New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC:
… the doctrine of estoppel (per rem judicatam) is one founded on considerations of justice and good sense. If an issue has been distinctly raised and decided in an action, in which the parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them. (at 19-20)
[25] This proposition cannot be escaped by wanting to present new arguments on the same issue. It has always been part of this doctrine of estoppel that it applies upon a definition of the issue, not on an identification of the argument on the issue. This is, of course, common sense. Litigation would go on forever if a litigant could say: Oh we’ve lost this time on argument A but looks here’s another argument B, we’ll try that one.
[12] In oral argument, AEP also relied on Dobson J’s summary in EBS v CAS of the relevant principles of res judicata and estoppel.4 The concept of cause of action estoppel is reflected in the passage already cited from Fogarty J’s judgment of Burgess v Beaven.5 Issue estoppel requires a relatively strict analysis of commonality features as between the first occasion on which the issue was addressed and the second occasion on which a party seeks to again contest it in Court. In EBS v CAS, Dobson J observed that a case-specific form of discretionary assessment is
required, which involves balancing the interests of finality against the risk of
3 Burgess v Beaven HC Christchurch CIV-2007-409-1361, 15 December 2008.
4 EBS v CAS [2014] NZHC 2929.
5 Burgess v Beaven, above n 3.
creating injustice by preventing a substantive determination on the ground that the issue has previously been rejected.6
[13] This discretionary approach is consistent with that adopted when applying the rule in Henderson v Henderson.7 This provides that it is an abuse of process to commence a proceeding not otherwise the subject of cause of action or issue estoppel, where the plaintiff seeks to rely on issues or facts that could and ought to have been raised in a previous proceeding.
[14] I do not find AEP’s reliance on these principles to be persuasive. The Family Court was not, in my view, substantially seized of the same issue which it was required to address on 11 August 2014, when it gave directions as to the order of proceedings at the earlier conferences.
[15] AEP’s argument, so far as it relies on the directions given by Judge Somerville on 19 May, can readily be disposed of. At the time the Family Court issued its directions, there was no competing proceeding under the Status of Children Act before the Court. What had been flagged to the Court was a potential issue of paternity, which may be relevant to the Hague Convention application. AEP herself acknowledged that her opposition to KM’s application would fall away if it was proved that A was his natural child. Judge Somerville’s adjournment of the hearing until “a declaration of paternity” had been made “if the DNA evidence supports that”, was to allow that factual or evidential inquiry to be determined. The Court did not purport to address the legitimacy of an application made pursuant to the Hague
Convention surrendering priority to another proceeding.8
[16] By 15 July, the Status of Children Act application had been filed and an application for the consolidation of the two proceedings made. Judge Somerville, at
the telephone conference, directed that both sets of proceedings were to be called on
6 EBS v CAS, above n 4, at [29], applying Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] NZLR 13 at [29]-[31].
7 Henderson v Henderson (1943) 3 Hare 100, 67 All ER 313 (Ch).
8 The Australian Central Authority’s cooperation to allow the DNA testing to proceed at that time, was consistent with its role pursuant to Article 10 of the Hague Convention, which provides that the Central Authority shall take appropriate measures to obtain the voluntary return of the child. [AEP] had acknowledged that she would not contest the application if it did not support [AJP] being the biological father.
11 August. He did not make any ruling that the Hague Convention application be stayed pending determination of the paternity proceeding, notwithstanding AEP’s application. Anticipating that clarification of the paternity issue could be relevant to the Hague Convention application, Judge Somerville directed that the paternity proceedings could conveniently be determined immediately prior to the hearing of that application, if not by consent, then by way of formal proof.
[17] I acknowledge that s 109 of the Act and Article 16 of the Hague Convention had been brought to the attention of the Court in counsel’s memorandum and notice of opposition of 10 July. However, Judge Somerville, in his short minute issued after the telephone conference on 15 July, makes no mention of those provisions. The issue of jurisdiction is not addressed, let alone decided. In the memorandum filed by counsel for the Central Authority, emphasis was placed on the delay that had occurred which would be further exacerbated if the allocated fixture date for the hearing of the Hague Convention application was vacated. It is apparent that Judge Somerville’s timetabling of the proceedings, for hearing on the same day, was a response to that concern. As such, it is apparent that the issues before the Family Court on 15 July concerned case management.
[18] In my view, the issue the Family Court was required to address on 11 August had not previously been distinctly identified to the Court, nor had it been substantively determined. The question presented at that time was whether, as a question of law, it had jurisdiction to hear and determine an application under the Status of Children Act ahead of the Hague Convention proceeding. What had been before Judge Somerville on 19 May and 21 July was an issue of case management, which, on both occasions, was dealt with by short minutes, neither of which exceeded a single page.
[19] AEP submitted that all that was identified to the Family Court on 11 August were new arguments, which caused the Family Court to reconsider its earlier decision. It is apparent, however, that insofar as there had been any earlier definition of what was required to be decided by Judge Somerville, the question posed was one directed to the convenient management of the two proceedings.
[20] Rule 177 of the Family Courts Rules 2002 specifically provides that where a Court hearing an application considers that the interests of justice require the variation or revocation of an order made, or a direction given, the Court may vary or revoke such order or direction. Judge Somerville’s consideration of the matter at the earlier conferences, and the directions he made, were only for the purpose of
managing the proceedings before him.9 He clearly was not, therefore, estopped from
revisiting the topic.
[21] In any event, as I have already observed, this was not a case of the Family Court hearing supplementary or new arguments in respect of an issue previously addressed and ruled upon. Rather, as I have already identified, the question for the Court on 11 August was whether the Family Court had jurisdiction to decide the paternity proceeding, pending the resolution of the Hague Convention application. Applying “considerations of justice and good sense”, I am not satisfied the issue had been “distinctly raised and decided”, when the order of the hearing of the respective proceedings had been canvassed at the earlier conferences, nor can I discern any risk of injustice stemming from Judge Somerville substantively determining that issue on
11 August.10 On those prior occasions jurisdiction simply appears to have been
presumed.
Priority given to Hague Convention
[22] In directing that the Hague Convention application should be decided first, the Family Court concluded that it was required, as a matter of law, to give precedence to the Hague Convention process ahead of AEP’s application for a declaration of non-paternity. In challenging that decision on appeal, AEP submitted that the Family Court had failed to apply New Zealand law in a manner consistent with its international obligations, and that s 109 of the Act and Article 16 of the Hague Convention were irrelevant to the Court’s consideration of the issue before it. It is therefore necessary before addressing those submissions to consider
New Zealand’s obligations as a contracting State under the Hague Convention.
9 Family Courts Rules 2002, rr 175 and 177.
The Hague Convention
[23] The Hague Convention, to which both New Zealand and Australia are signatories, was concluded in 1980 and acceded to by New Zealand in 1991 (and Australia in 1987). It was incorporated into our domestic law, firstly, by the Guardianship Amendment Act 1991, and subsequently in the Care of Children Act
2004.11
[24] The Hague Convention has two objectives.12 Firstly, it is to secure the prompt return of children wrongfully removed to, or retained, in any contracting State. Secondly, to ensure that rights of custody and of access under the law of one contracting State are respected in other contracting States.
[25] Each contracting State is required to designate a Central Authority to discharge the particular duties imposed by the Convention. In New Zealand, the Central Authority is the Secretary for Justice. In the present case, KM, through the auspices of the Australian Central Authority, made a request to the Secretary for Justice for A’s return to Australia.
[26] It is mandatory that an order be made for the return of a child, if the application is made within one year of the removal or retention of the child, and in the absence of the person resisting the application being able to establish any of the limited prescribed grounds for a Court to refuse the return of the child. These limited grounds, or defences, are set out in Article 13 of the Hague Convention and were enacted into New Zealand law by s 106(1) of the Act. For the purposes of this appeal, two of the grounds for opposition provided in s 106 are of some relevance:
(1) …
(b) that the person by whom or on whose behalf the application is made—
(i) was not actually exercising custody rights in respect of the child at the time of the removal, unless that person establishes to the satisfaction of the court that those custody rights would have been exercised if the child had not been removed; or
11 Care of Children Act 2004, pt 2, sub pt 4.
…
(e) that the return of the child is not permitted by the fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.
…
United Nations Convention on the rights of the child
[27] AEP submitted that the Family Court, in considering that it had a duty to uphold the Hague Convention, failed to address and give effect to CROC, which she submitted was the more important convention to which New Zealand is also a signatory.
[28] While CROC has not been enacted into New Zealand law, it was submitted that Article 3.1, which provides that Courts of law will, as their primary consideration, act in the best interests of the child, has been incorporated into our domestic law by s 4 of the Act. This requires the welfare and best interests of the child to be the first and paramount consideration in proceedings under the Act.
[29] Other articles of CROC were referred to in argument. These included that a child has the right to know and be cared for by his or her parents; that convention States will ensure that a child shall not be separated from his or her parents, other than in accordance with applicable law when such separation is necessary for the best interests of the child; and that States will use their best efforts to ensure recognition of the principle that both parents (or legal guardians) have common and
primary responsibility for the upbringing and development of the child.13 AEP
referred to the observations of Hammond J in Hemmes v Young, to emphasise that New Zealand Courts have endeavoured to recognise the importance of birth status and natural family relationships to a child.14
[30] Relying on these rights of the child, AEP submitted that had the Court considered and applied these articles of the convention, it would have held that the paternity proceeding should have, in the circumstances of this case, prevailed over
the Hague Convention application. By not giving precedence to CROC, it was
13 CROC, above n 2, arts 7(1), 9(1) and 18(1).
14 Hemmes v Young [2005] 2 NZLR 755 (CA) at [53].
submitted “that a fraud by [AEP] and [KM]” would be allowed to be perpetrated on A and AJP. AEP submitted that CROC trumps the Hague Convention because the latter instrument is predicated on established rights of custody.
[31] Where those rights of custody are called into question, it was submitted that, in accordance with New Zealand’s international obligations and, indeed, its own domestic law, the correct process was to first determine whether KM had rights of custody on which to found a Hague Convention application.
[32] This leads to the identification of AEP’s essential argument that KM’s standing to make application for the return of the child is predicated on him being A’s father. Because the challenge is to the existence of such standing, the Articles of CROC, which New Zealand is obliged to recognise, requires the paternity proceedings, so it was argued, to be determined before the Hague Convention application for the return of the child.
[33] In response to this argument, the Attorney-General, who was granted leave to be joined to this proceeding, submitted that a basic premise of the Hague Convention is that a child’s best interests are protected by having issues about their parenting determined in the country of his or her habitual residence. The two conventions are not incompatible or inconsistent. The preamble to the Hague Convention records that in concluding a convention to protect children internationally from the harmful effects of wrongful removal or retention, the signatory States are “firmly convinced the interests of children are of paramount importance in matters relating to their custody”. It does not follow that giving precedence to the processes provided by the Hague Convention is inconsistent with the Articles of CROC.
[34] The Hague Convention states that a decision on the merits of the right to custody should be made in the child’s country of habitual residence, rather than in the jurisdiction to which the child has wrongfully been removed or retained. If the child has been wrongfully removed or retained, the courts of the state in which refuge has been sought are forbidden to adjudicate on the matter. That, however, is not the end of the matter. The prohibition on the state of refuge dealing with the application for the return of the child will be removed if it is established that one of
the limited prescribed grounds for opposing the making of an order for a child’s
return is established.15
[35] In Re E (Children) (FC), the United Kingdom Supreme Court considered the effect of provisions of the European Convention on Human Rights in addition to Article 3(1) of CROC on the operation of the Hague Convention.16 In examining the interrelationship between consideration of the best interests of the child and the application of the Hague Convention, the United Kingdom Supreme Court observed:
[14] On the other hand, the fact that the best interests of the child are not expressly made a primary consideration in Hague Convention proceedings, does not mean that they are not at the forefront of the whole exercise. The Preamble to the Convention declares that the signatory states are “Firmly convinced that the interests of children are of paramount importance in matters relating to their custody” and “Desiring to protect children internationally from the harmful effects of their wrongful removal or retention…” This objective is, of course, also for the benefit of children generally: the aim of the Convention is as much to deter people from wrongfully abducting children as it is to serve the best interests of the children who have been abducted. But it also aims to serve the best interests of the individual child. It does so by making certain rebuttable assumptions about what will best achieve this: see the Explanatory Report of Professor Pérez-Vera, at para 25.
The United Kingdom Supreme Court continued:17
… The assumption then is that if there is a dispute about any aspect of the future upbringing of the child the interests of the child should be of paramount importance in resolving that dispute. Unilateral action should not be permitted to pre-empt or delay that resolution. Hence the next assumption is that the best interests of the child will be served by a prompt return to the country where she is habitually resident. Restoring a child to her familiar surroundings is seen as likely to be a good thing in its own right.
[36] The United Kingdom Supreme Court also acknowledged, as I have already remarked, that those assumptions may be rebutted, albeit in a limited range of circumstances. Those circumstances are “inspired” by the best interests of the child.18 Referring to situations analogous to the grounds set out in s 106 of the Act, which provide a basis for opposing the removal of a child, the United Kingdom
Supreme Court noted that these situations may render the general underlying
15 Eliza Pérez-Vera Explanatory Report on the 1980 Hague Child Abduction Convention (1980) Acts and Documents from the 14th session, Tome III 426 at 463-464 [Explanatory Report].
16 Re E (Children) (international abduction) [2011] UKSC 27, [2012] 1 AC 144.
17 At [15].
18 At [16].
assumptions relating to the application of the Hague Convention serving the best interests of the child to be invalid.
[37] Ultimately, the United Kingdom Supreme Court concluded that if the Court faithfully applies the provisions of the Hague Convention, there will be compliance with art 3(1) of CROC. It follows that the scheduling of the Hague Convention application in advance of the Status of Children Act proceedings would not breach the child’s rights, as it would remain for the Court, on the substantive hearing of the Hague application, to decide what impact the paternity issue (if any) may have on the assessment of grounds to refuse an order for the return of the child. The setting of the hearing of the Hague Convention ahead of the paternity proceedings does not prevent AEP from raising the issue of paternity in the Hague Convention proceeding.
[38] In Murray v Director, Family Services, a full Court of the Family Court of Australia considered a similar argument, that the Hague Convention was inconsistent with and should be read subject to Article 3 of CROC (that the best interests of the child shall be the Court’s primary consideration).19 In concluding that the two conventions were not inconsistent, the Australian Court held that the Hague Convention is predicated upon the paramountcy of the rights of the child and proceeds upon the basis that those rights are best protected by having issues as to custody and access determined by the Courts of the country of the child’s habitual residence. In reaching that conclusion, the Court observed that CROC itself,
particularly Articles 11 and 35, recognises that the best interests of the child are negatively impacted upon by their illicit transfer or retention abroad. Far from the two Conventions being in conflict, there was a high degree of compatibility. Article
11 of CROC provides:
Article 11
1.States Parties shall take measures to combat the illicit transfer and non-return of children abroad.
2.To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.
19 Murray v Director, Family Services ACT [1993] FamCA 103.
[39] The Attorney-General drew attention to other Articles in CROC that were consistent with the aims and objectives of the Hague Convention:
Article 8
1.States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2.Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
Article 9
1.States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child…
…
3.States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
…
[40] In oral argument, the Attorney-General stressed that the presence or otherwise of a genetic relationship was not a determining prerequisite to a child’s entitlement to these rights being respected. The concepts of family and parent are no longer defined by biological relationship or confined to genetic links. There is a multitude of circumstances and relationships which may involve multiple parental figures. It does not follow that a child’s right to identification with a biological parent is of such singular and critical importance to influence the scheduling of competing applications and oust the entrenched priority that is required to be given to the hearing and determination of Hague Convention applications.
[41] The Family Court’s determination that the Hague Convention proceeding was to take priority did not result in the Court acting inconsistently with the obligations contained in CROC, nor was it required to consider which convention took precedence. As international instruments, they are of different effect but share a
similar objective. The Hague Convention has been formally incorporated into New Zealand law. It provides procedures and rights to address the illicit transfer or retention of children in another jurisdiction. It represents an accord by contracting States as to how that issue is to be addressed, with priority being given to the presumptive best interests of the child by facilitating his or her return to the jurisdiction of their habitual residence.
[42] CROC recognises the rights of children in that context, and New Zealand’s ratification of that convention, as with the Hague Convention itself, represents an acknowledged commitment to the fulfilment of those rights.
[43] In the present case, I am not satisfied that the child’s rights as recognised by CROC would be infringed by giving precedence to the hearing of the Hague Convention application. AEP will have the opportunity upon the hearing of that application to oppose an order for the return of A and may rely on CROC insofar as its articles may impact upon the merits of her opposition and any argument she may seek to make about the rights being asserted by KM as the basis for his application for the return of the child to Australia.
Section 109 of the Care of Children Act and Article 16 of the Hague Convention
[44] The Family Court held that s 109 of the Act and Article 16 of the Hague Convention would be breached if the making of a declaration of non-paternity may deprive the Court of the ability to order A’s return. It would amount to deciding KM’s rights of custody “on the merits” and the Court should not make any order or decision that would potentially impact upon the application for the return of the child under the Hague Convention. Section 109 of the Act gives statutory effect to Article
16 of the Hague Convention. Article 16 provides as follows:
Article 16
After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following the receipt of the notice.
Section 109(1) provides:
109No order or decision about role of providing day-to-day care for child to be made until application determined
(1) A court to which an application under section 105(1) is made in respect of a child—
(a) must not, while those proceedings are pending, make any order or decision about the role of providing day-to-day care for that child in any other proceedings that are before that court (whether those proceedings were commenced before, after, or at the same time as, the application was made); and
(b) may adjourn those other proceedings pending the determination of the application.
[45] In AEP’s submission, the reliance placed by the Family Court on s 109(1) and Article 16 was misplaced. She argued that those provisions, concerned as they are with competing applications for custody or the day-to-day care of the child, were irrelevant to the issue of paternity and should not have been taken into account. It was submitted that the paternity proceedings were not for the purpose of determining competing rights of custody but to determine whether or not KM actually had any such rights upon which to base his application under the Hague Convention, derived as they were from his status as A’s parent.
[46] Judge Somerville in approaching this issue applied orthodox principles of interpretation. After referring to s 5 of the Interpretation Act 1999, requiring the meaning of an enactment to be ascertained from this text and in light of its purpose, he remarked upon Article 31 of the Vienna Convention on Treaties which provides:
The Treaty should be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the Treaty and their context in the light of its object and purpose.
[47] It is uncontested that s 109 of the Act is intended to give domestic legislative force to Article 16 of the Hague Convention. It follows that the Court should therefore endeavour to interpret the Act in a manner that is consistent with that Convention. In Chief Executive of the Department for Courts v Phelps, this
approach was affirmed:20
20 Chief Executive of the Department for Courts v Phelps [2000] 1 NZLR 168 at [14]..
[It] follows both from the statement in the Act’s Long Title that it is amending the Guardianship Act “in order to implement the Hague Convention” and from established authority. We noted that there is among the parties to the Convention a growing body of case law and official and other commentary on the provisions of the Convention and that we should if possible interpret the Convention in the same way as others do, in this matter of international concern.
[48] Similarly, in Punter v Secretary for Justice, the Court of Appeal confirmed the importance of applying international interpretation principles under the Vienna Treaty where a domestic statute makes direct reference to an international convention: 21
[12] Glazebrook J (at [131] of Zaoui) said that, if there was a divergence between the interpretation of a provision under domestic principles and that under the Vienna Convention, it would be a matter of statutory interpretation as to whether domestic or international interpretation principles were meant to apply. As in that case the statute directly referred to the United Nations Convention relating to the Status of Refugees 1991, she considered that this clearly pointed to the international interpretation principles applying. Given the direct reference to the Hague Convention in the Care of Children Act and its annexure to the statute, the international interpretation principles would thus apply in this case, if there is any divergence.
[49] The Family Court referred to the Travaux Préparatoires of the Treaty, which in the context of the Hague Convention on Child Abduction was the Explanatory Report [Explanatory Report] authored by Professor Pérez-Vera.22 Judge Somerville placed particular emphasis on the following passage from the commentary on Article
16:
[121] This Article, so as to promote the realisation of the Conventions objects regarding the return of the child, seeks to prevent a decision on the merits of the right to custody being taken in the state of refuge. To this end, the competent authorities in this state are forbidden to adjudicate on the matter when they have been informed that the child in question has been, in terms of the Convention, wrongfully removed or retained.
[50] Leaving to one side for the purposes of the present argument whether decisions relating to the paternity of A can be deployed retrospectively to challenge KM’s custody rights, any such orders are clearly to provide a foundation to argue
that KM does not have qualifying rights of custody. As Judge Somerville concluded,
21 Punter v Secretary for Justice [2007] 1 NZLR 40 at [12].
22 Explanatory Report 121; in Dellabarca v Christie [1999] 2 NZLR 548, Professor Pérez-Vera’s
report was referred to and relied on in interpreting the Convention.
the ethos of the Convention was to ensure the speedy return of children to their home country, which was the appropriate venue to determine the merits of the dispute between the parties. When the prohibition contained in s 109 is interpreted consistently with the objectives of the Convention and the more widely phrased Article 16, it is clear that it has application to a proceeding the outcome of which is intended to impact upon issues regarding rights of custody as between the parties.
[51] AEP sought to make a distinction between a challenge to KM’s standing to invoke the Hague Convention process and disputing his rights to custody. In my view, however, it is a hollow distinction without a difference. The paternity proceedings represent a collateral challenge to the merits of the Hague Convention application and are designed to alter the status quo existing between the parties at the time of the child’s retention in this country. The objective of obtaining a prior determination of those proceedings is to achieve a ruling which may potentially impact on what are presently the competing custodial rights and obligations of the parties, and is the very type of decision which is to be avoided pending the determination of the Hague Convention application. No other conclusion is properly available on an interpretation of s 109 read consistently with Article 16 of the Convention and its objectives.
[52] Further, it is to be noted that the only issue presently before the Court is the priority to be given to the hearing of the two sets of proceedings, not whether the issue of paternity can be raised in the context of the Hague Convention application. AEP is not being deprived of the opportunity to raise the merits of her paternity argument in opposition to an order for the return of A.
Was the Court plainly wrong?
[53] Even if some issue does arise as to the effect of s 109 on a proceeding seeking paternity orders under the Status of Children Act, the objectives of the Convention as incorporated into New Zealand domestic law point directly against a collateral proceeding being given precedence. An express object of the Convention is to secure the prompt return of illicitly transferred or retained children and to preserve the status quo in respect of the care arrangements that existed before the
alleged wrongful removal or retention from the country of habitual residence occurred. Section 107(1) of the Act specifically requires a Court to give priority to the proceeding in order to ensure that it is dealt with speedily.
[54] AEP submitted that the Family Court Judge was plainly wrong when he considered that even if the Status of Children Act applications were not prohibited by Article 16 or s 109, the Court’s duty was to uphold the international convention by refusing to progress an application that had the potential to frustrate its operation. AEP submitted that Judge Somerville had conflated an application for the return of a child under the Hague Convention with a determination that there had been a wrongful removal of a child. She argued that a prerequisite to an order for the return of the child was KM establishing that he had “rights of custody”. Determining whether or not that was so would not frustrate the Convention process but, in her submission, would enhance the process by ensuring that a precondition to the Convention’s application was satisfied.
[55] In that regard, reliance was placed on Dellabarca v Christie, a decision of the Court of Appeal, as authority for the proposition that determination of rights of custody turns on establishing legal rights and that both CROC and the Hague Convention are concerned with a child’s legal relationships with her parents and not as it was described in argument “de facto ones”.23 In that case, a letter written by a counsellor, which purported to record the parties’ alleged agreement regarding access was held not to be an agreement of legal effect. Accordingly, in the absence of the agreement conferring “rights of custody”, the mother’s removal of the parties’ child
to Australia was not a breach of rights of custody and was not therefore to be considered wrongful under the Hague Convention. It is to be noted that the New Zealand Courts were seized of the issue as a result of a request by the Australian Central Authority for a declaration from the New Zealand Family Court, under Article 15 of the Convention, that the removal was wrongful.
[56] AEP’s reliance on that case is misplaced resting as it does on the erroneous precept that KM’s rights of custody could be finally and substantively determined by
obtaining paternity orders in New Zealand prior to dealing with the application under
23 Dellabarca v Christie [1999] 2 NZLR 548.
the Hague Convention. It also fails to recognise the deference required to be given to the laws of another contracting state relating to rights of custody and access.
[57] Section 105 of the Act provides the preconditions for an application for an order for the return of a child. These include a requirement that at the time of the removal or retention of the child, the person making application was actually exercising rights of custody, or such rights would have been so exercised but for the removal or retention.24 All that is necessary is that there is a claim that the child was removed or retained in breach of that person’s rights of custody and at that particular time those rights were being exercised. The limited grounds for opposing an order for the return of a child pursuant to s 106(1) refer only to whether the person on
whose behalf the application is made was actually exercising custody rights in respect of the child at the time of the removal or retention.25
[58] As already observed, the only issue before this Court on appeal is the order in which the Hague Convention proceeding and the applications under the Status of Children Act are to be determined. The merits of any grounds for refusal under s 106 remain for consideration by the Family Court. This includes s 106(1)(e) which was referred to in oral argument as a potential relevant consideration. That ground for refusing an order rests on establishing that the return of the child is not permitted by the fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.
[59] In Secretary for Justice v H J, the Supreme Court distinguished between the prescribed approach to an application under s 105 and the considerations to be taken into account under s 106 of the Act.26 The Court was considering the effect of s 4(7) which provided that the otherwise paramount principle of the welfare and best interests of the child did not limit subpart 4 of Part 2 of the legislation which incorporates the Hague Convention into domestic New Zealand law.27 The Supreme
Court observed:28
24 Care of Children Act 2004, s 105(1)(c).
25 Section 106(b)(i).
26 Secretary for Justice v H J [2006] NZSC 97, [2007] NZLR 289.
27 Section 4 was repealed and substituted as from 31 March 2014 with a new section, however, subsection (7) was substantially re-enacted by subsection (4)(a) of the new provision.
28 Secretary for Justice v HJ, above n 26, at [48]-[49].
This means that the statutory mandate that in proceedings under the Act the welfare and best interests of the child must be the first and paramount consideration, often called the paramountcy principle must not be taken as limiting anything in the provisions dealing with what the heading to subpart
4 calls “International child abduction”. Clearly, therefore, the paramountcy principle cannot limit the duty to order return in terms of s 105 when no ground for refusing to do so can be invoked. The Court’s duty to order return in s 105 circumstances is not in any way “limited” by what is best for the individual child. The rationale is that the deterrent policy of the Convention must prevail.
By contrast the statement that the paramountcy principle must not limit the s 106 discretion cannot be regarded as meaning, as it must in relation to s 105 that the welfare and best interests of the child are not to be taken into account. The word used in s 4(7) is “limit” and, in this context, its use is not entirely straightforward. The only Convention context in which the same word appears is art 18; but in that context the connotation of the word is easier of application. Section 4(7) does not provide that the “paramountcy” principle” shall not apply to subpart 4 of Part 2 but, on the other hand, to allow the paramountcy principle to mandate the answer to a s 106(1)(a) would amount, in context to a limiting of the discretion vested in the Court by that provision. Once a case moves from s 105 to s 106 the principle is relevant, but it must not be applied so as to limit the s 106 discretion. The statutory discretion in s 4(7) can only be construed as requiring the Court to have regard to the welfare and best interests of the particular child in a manner that is not inconsistent with the policies and purposes of the Convention.
[60] The present appeal is concerned with the expeditious setting down of the s
105 application and the priority to be afforded to its determination ahead of other related proceedings. The observations of the Supreme Court are consistent with the process provided for by the Hague Convention as enacted in New Zealand law being afforded that priority without reference to potential arguments that may otherwise be made albeit within the confines of the prescribed grounds for opposition set out in s 106.
[61] KM’s position is that he had rights of custody to A as at the date of her retention in this country which he had been exercising up until that time. He was a parent, having been named on the child’s birth certificate as A’s father. Pursuant to s
79R of the Family Law Act 1975 (Australia), he was therefore presumed to be A’s parent. As matters presently stand, that presumption remains intact. At the time of the application for an order for the return of the child pursuant to s 105 of the Act, that was the position. It is the basis upon which the Family Court is obliged to receive the application, namely that at the time of the retention of A in New Zealand,
KM’s rights of custody as a parent, as the named father on the birth certificate, were breached.
[62] AEP’s applications under the Status of Children Act are an undisguised attempt to remove the foundation for a Hague Convention application. The effect of such a retrospective challenge in terms of KM’s standing under s 105(1) of the Act is doubtful. At the date of retention, KM indisputably had rights of custody in respect of A. No Australian Family Court orders were in place which affected KM’s parental responsibilities. These can only be displaced by order of an Australian
Court.29 No subsequent orders have been made by an Australian Court since A was
retained in New Zealand. Section 111B(4) of the Australian Act provides that if a person has parental responsibility for a child, they also have rights of custody for the purpose of the Hague Convention.
[63] It is difficult therefore to envisage how orders made by a New Zealand Court under the Status of Children Act would have any impact on the legal position in Australia. Further, the legal position in Australia only serves to highlight how giving precedence to the paternity proceedings, designed as they are to undermine KM’s legal position in the Australian jurisdiction, would infringe not only the Articles of the Hague Convention but the principle of comity between states, and particularly those of cognate jurisdictions. The Hague Convention expressly recognises and gives effect to that principle. It requires that the country of the child’s habitual residence from which he or she has been wrongly removed or detained should decide disputed matters bearing on custody and access and that the law of contracting states relating to such rights be respected.
[64] This was confirmed in a case with some significant parallels to the present appeal. In Re (M) (A child), the English Court of Appeal was concerned with a Hague Convention application made by Latvia on behalf of a father whose child had been taken to the United Kingdom.30 The application was resisted on the grounds
that the father was not in fact the child’s biological father. Proposed DNA testing for
29 Family Law Act 1975 (Australia), note 3(3) of s 61C and s 4 which provides that parental responsibility can only be displaced by an order of the Court and that “Court”, in relation to any proceedings, means the Court exercising jurisdiction in those proceedings by virtue of the Act.
30 Re (M) (A child) [2013] EWCA CIV 1131.
the purposes of determining paternity was considered to have been premature in the absence of expert legal evidence that in Latvia only a biological father had custodial rights. In deprecating the resort to the proposed DNA testing, the Court found that a determination of paternity was best carried out in a “welfare context” and by the Court of the child’s habitual residence. In the circumstances of a Convention application, such a determination should only be made if it was clear that it was necessary for the purpose of a decision which the Court had to make.
[65] The English Court of Appeal expressed doubt that the father’s right of custody at the material time under Latvian law depended on whether he was the biological father. The Court referred to the fact that the father was named on the birth certificate; had acted for most of the child’s life as a de facto father; and that the mother had consented to the making of a Court order on the explicit basis that he was the father. The Court observed that it would not be surprising if any one or more of those grounds allowed the father to be treated in Latvian law as having rights of custody at the moment of removal, even if they might subsequently be lost as a result of him being shown not to be the biological father. The Court deferred any decision as to whether to order DNA testing until it had been clearly established that the issue of biological paternity was indeed the decisive question for the purpose of jurisdiction.
[66] In the present case, the question of biological paternity will not be the decisive question for the purpose of determining jurisdiction. The position under Australian law is undisputed, and as matters presently stand, as they did at the time of the retention of the child in this country, KM has rights of custody as a result of his being named as the father of the child on the Australian birth certificate. While that presumption is rebuttable, it is only rebuttable within the Australian jurisdiction. What consequences flow from rebutting that presumption are for an Australian Court to decide. Other issues that may be of relevance include the period of time over which, with the apparent approval and consent of AEP, KM discharged parental responsibilities and undertook the role of A’s father and what considerations that may give rise to in terms of decisions relating to A’s day-to-day care.
Conclusion
[67] I find therefore that Judge Somerville was correct in his overarching conclusion that the Family Court was obliged to give effect to the objectives of the Hague Convention by declining to accept jurisdiction to progress the application under the Status of Children Act ahead of the Hague Convention proceeding. The paternity proceedings are designed to challenge KM’s extant rights of custody in Australia upon which the Australian Central Authority based its request to New Zealand. It would be wrong for a New Zealand Court to give priority to a collateral application the intended effect of which is to alter the legal position or status of the party upon which the overseas Central Authority’s application is based.
[68] In any event, any order of a New Zealand Court would not alter the legal position of the applicant within the Australia jurisdiction. Until further order of an Australian Court, KM’s legal status in that country remains the basis upon which a New Zealand Court is obliged to deal with the Hague Convention application.
[69] The appeal is dismissed.
[70] This judgment may be cited as Ponsonby v Maitland.
Solicitors:
Joynt Andrews, Christchurch
Cunningham Taylor, Christchurch
S Gillan
Crown Law, Wellington
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