Andersen v Lewis
[2022] NZHC 1924
•5 August 2022
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2022-409-000260
[2022] NZHC 1924
UNDER the Care of Children Act 2004 IN THE MATTER
of an appeal against a decision of the Family Court at Christchurch
BETWEEN
ANDERSEN
Appellant
AND
LEWIS
Respondent
Hearing: 1 August 2022 Appearances:
M J Bryant and G J McIntosh for the Appellant S R Jefferson QC for the Respondent
A R Beaumont as Lawyer for Child
Judgment:
5 August 2022
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 5 August at 1.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
ANDERSEN v LEWIS [2022] NZHC 1924 [5 August 2022]
Introduction
[1] The appellant (the father) is the father of L (aged 10 years). The respondent is L’s mother (the mother).
[2] L was born in the United States of America (USA) in 2011. After his parents separated in 2012, his care arrangements were recorded in three orders made within the USA jurisdiction. The last order, dated 3 January 2018 (the order), was made by consent.
[3] The father moved to live in New Zealand in 2018, and L has spent time with each parent in both the USA and New Zealand.
[4] On 1 December 2021, the father filed an on-notice application for a parenting order under the Care of Children Act 2004 (the Act). On 28 December 2021, the father told the mother that L would not be returning to the USA.
[5] On 17 March 2022, the mother filed an application for an order for return of L under the Act, which incorporates into New Zealand law the Hague Convention on the Civil Aspects of International Child Abduction, signed at the Hague on 25 October 1980 (the Convention) and subsequently ratified by New Zealand.
[6] The father alleged that when L was last in the USA the mother and her then husband physically and psychologically abused L. He also alleged there was an incident between the mother and her then husband that put L at risk. Finally, he alleged L objected to returning to the USA.
[7] On 7 June 2022, the Family Court issued a judgment ordering L’s return to the USA, finding L would not be at grave physical or psychological risk if returned to the USA and that L’s objection was not necessarily authentic as it may have been shaped in part by his father’s influence.1 The father appeals that decision.
1 Lewis v Andersen [2022] NZFC 5256.
Issues
[8] The father applies for leave to adduce further evidence on appeal and for an order directing a psychological report be obtained pursuant to s 133 of the Act.
[9]The issues for the Court to determine are whether to:
(a)accept the further evidence (a further affidavit by the father dated 14 July 2022) (father’s affidavit); and
(b)direct a psychological report pursuant to s 133 of the Act.
Context
[10] The proceedings concern the application of the Convention. Convention proceedings determine forum; namely which country should have the responsibility to make determinations regarding care and guardianship. The broad-based assessment of the child’s welfare is delayed pending determination of the Convention application.2
[11] The Convention decision is therefore just one step on a process continuum. The opportunity to raise evidence concerning the broader welfare issues, to have assessments undertaken, and to have determinations made about appropriate parenting and guardianship roles lies in the future once forum has been determined.
[12] Where there are complex underlying dynamics and major areas of factual dispute there is a pressing need for prompt resolution of the summary issues to ensure that the broader issues can be properly and fully addressed.
[13] The summary nature of Convention proceedings,3 (and the expectation of prompt decision making) is clear from the following:
(a)Article 1 of the Convention sets out the objectives of the Convention, as being: to secure the prompt return of children wrongfully removed
2 Care of Children Act 2004, s 109 provides, for example, that no order or decision about day-to-day care or contact shall be made whilst an application for return is pending.
3 Specifically applications for return pursuant to s 105 of the Act.
to or retained in any Contracting State, and to ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States.
(b)Article 2 of the Convention requires Contracting States to take all appropriate measures to secure the implementation of the objects of the Convention — and to use “the most expeditious procedures available”. This is incorporated into the Act by means of s 107, which requires a court to which an application is made under s 105 to give priority to the proceedings, so far as practicable, to ensure they are dealt with speedily.
(c)Section 107(3) of the Act enables the Central Authority to seek an explanation from the court where an application is not determined within six weeks from the date on which the application is made. In such situations, the Central Authority may request the Registrar of the court to supply a statement of the reasons why the application has not been determined within that period. Reflecting New Zealand’s international obligations, there is a mandatory obligation placed on New Zealand’s Central Authority to seek such a statement of reasons if requested by the applicant or the Central Authority of the home country.
(d)Section 105(2) of the Act requires that the court must order the prompt return of the child to the jurisdiction from which he or she was wrongfully removed unless a ground for refusing the order under s 106 is established to the satisfaction of the court.
(e)The exceptions set out in s 106 are carefully circumscribed.
(f)The paramountcy welfare principle does not limit the duty to order a return in terms of s l05 where no ground for refusing to do so can be invoked.4 It is not the function of the requested State to conduct a wide- ranging inquiry into the best interests of the child. The prompt and
4 Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289 at [24] discussing the effect of s 4(4) of the Act which provides that s 4 does not limit subpart 4 of Part 2 (being the provisions related to Convention return applications).
focused inquiry required by the provisions of the Convention is designed to ensure that the outcome does serve the interests of the particular child.5
Background
[14] The application for orders in terms of s 105 of the Act was made on 17 March 2022, and the matter was heard on 28 April 2022 (with the decision delivered on 7 June 2022). The making of the application and the holding of the hearing fell within the statutory requirement that the matter be dealt with promptly.
[15] The father reasonably conceded that the prima facie grounds for the making of an order for return of the child to the USA (as sought), in terms of s 105 of the Act, were made out. He, however, raised two objections to the making of an order for return, namely that:
(a)there would be a grave risk that L’s return to the USA would expose him to physical or psychological harm or would otherwise place the child in an intolerable situation (“grave risk”); and
(b)L objected to being returned to the USA and had attained an age and degree of maturity at which it would be appropriate to give weight to those views (“child objection”).
[16] As is customary in proceedings of this nature, the parties each filed evidence in the Family Court by way of affidavit.
[17] Notably, the father filed four affidavits (two from himself and two from supporting witnesses), the latest being sworn on 14 April 2022.
[18]No applications were made to cross-examine any of the deponents.
5 LRR v COL [2020] NZCA 209, [2020] 2 NZLR 610 at [79].
[19] An application for the commissioning of a psychological report pursuant to s 133 of the Act was made on three occasions and expressly declined by the Family Court Judge on 25 March 2022, 26 April 2022 (just two days prior to the scheduled hearing), and again at the outset of the hearing on 28 April 2022.
[20] In the end, neither of the defences raised by the father were found to be established to the requisite standard (“to the satisfaction of the Court”) and an order for the return of the child to the USA was accordingly made. Of particular note for the purposes of this application, the Judge found that:
(a)the relationship with the mother and her husband had ended;6 and
(b)L would not be exposed to the mother’s then husband as that relationship was at an end, and the mother had a protective order in place which she had enforced.7
Should the Court grant leave to the father to adduce a further affidavit?
[21] Applications to adduce further evidence on appeal are governed by r 20.16 of the High Court Rules 2016 (the Rules).
20.16 Further evidence
(1)Without leave, a party to an appeal may adduce further evidence on a question of fact if the evidence is necessary to determine an interlocutory application that relates to the appeal.
(2)In all other cases, a party to an appeal may adduce further evidence only with the leave of the court.
(3)The court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.
(4)Further evidence under this rule must be given by affidavit, unless the court otherwise directs.
[22]The Court will generally consider whether the evidence:
6 Lewis v Andersen, above n 1, at [41](a).
7 At [41](g).
(a)could have been obtained with reasonable diligence for use at the trial;
(b)appears to be cogent and credible;
(c)would have had an important influence on the outcome of the case; and
(d)whether admitting the evidence would require further evidence from other parties and cross-examination.
[23] In B v A, Wylie J summarised the principles governing the receipt of further evidence as:8
(a)the Court can receive further evidence if it thinks that the interests of justice require it to do so;
(b)it is wrong to allow an appellant to bolster his or her case with additional evidence that was available at the lower Court hearing, but not adduced because of the particular view of the case being taken at the time;
(c)admitting further evidence on appeal is exceptional rather than routine. A change of heart about how a case should have been run will not suffice. The prospect of further evidence triggering a substantial re-litigation before the appellate Court of the substantive case will count against admitting the further evidence;
(d)generally, the further evidence must be fresh, credible and cogent;
(e)evidence will not be regarded as fresh if it could, with reasonable diligence, have been produced at the trial;
(f)the absence of freshness is not an absolute disqualification. When the further evidence is not fresh, it will not generally beadmitted unless the circumstances are exceptional and the grounds compelling. In addition, the further evidence needs to pass the tests of credibility and cogency;
(g)the interests of justice require the parties to put their best case forward at trial, in order to avoid wasting the Court’s limited time and resources. A high value is placed on finality when the parties have been afforded the opportunity and failed to take it; and
(h)the standard to be met is “rightly high”.
[24]In LLR v COL, the Court of Appeal stated:9
8 B v A [2020] NZHC 580,(2020) 26 PRNZ 58 at [25].
9 LRR v COL, above n 5.
[101] The Convention requires a court in a requested State to walk a delicate line between ensuring that the application is determined promptly, and ensuring that proper attention is paid to the important and often strongly contested issues that can arise in the context of Convention applications. The temptation to conduct a full inquiry into the welfare and interests of the child must be resisted. A lengthy and wide-ranging inquiry of that kind would defeat one of the Convention’s central objectives: ensuring the prompt return of children who have been wrongfully removed or retained, where none of the exceptions applies. On the other hand, the Convention and the Act require the court to conduct a proper inquiry, based on evidence rather than speculation, into the facts relevant to any exception that is invoked.
[25]The Court of Appeal further went on to state that:10
… Delay risks undermining the objectives of the Convention. But a child should not be exposed to grave risks because the court lacks the evidence it needs to determine whether the exception applies.
[26]In H v M-P Duffy J considered:11
… that while applications to adduce fresh evidence should be considered in accordance with recognised principles, it is necessary after doing so to stand back and assess the particular case for the purpose of seeing if there is anything about the case that justifies a departure from the standard approach. …
The father’s affidavit
[27]The “evidence” contained in the father’s affidavit concerns:
(a)a further alleged domestic violence incident between the mother and her then husband;
(b)the mother’s then husband’s ongoing involvement with the mother and her family; and
(c)the mother’s contact with L.
[28] Ms McIntosh submitted first that the evidence was fresh because it relates to incidents alleged to have occurred since the hearing in the Family Court.
10 At [105].
11 H v M-P HC Auckland CIV-2007-404-6512, 13 December 2007 at [10].
[29] Second, she submitted that the information should be treated as cogent and credible given it includes police reports, police event logs, screenshots of communication and a photo sent to the father by the mother. Ms McIntosh submitted that the evidence is material to the resolution of the appeal in relation to the issue of grave risk.
[30] Third, Ms McIntosh submitted the evidence clearly indicates that the findings of the Family Court Judge in relation to grave risk were wrong. In particular the findings set out at [20] above.
[31] Mr Jefferson QC, for the Central Authority on behalf of the mother, submitted the new evidence is neither cogent nor compelling and that, applying Wylie J’s principles, the Court ought not admit it into evidence.
[32]Ms Beaumont abides the Court’s decision on this application.
Discussion
[33]The father is obviously seeking to establish that:
(a)the mother and her then husband have resumed their relationship as opposed to simply being with one another on occasions as co-parents; and
(b)the relationship remains an abusive one.
[34] In his affidavit the father refers to an event which he asserts took place in Coweta County, Georgia on 7 April 2022 that resulted in the arrest of a male said to be the mother’s husband (although this fundamental fact is not clearly established on the information provided). He further asserts a belief that “this was an incident involving [the mother]”. The evidence in support of this allegation carries little or no probative weight. It is entirely supposition
[35] The father also notes the connection between the mother and a company registered on 4 June 2021, in which the mother’s husband is designated the “registered
agent”. Again, this adds little or nothing of probative weight concerning the issues in this case.
[36] The father annexes a “Facebook update” as proof of an ongoing and significant propinquity between the mother and her husband. It is undated and has no context. It has no probative value.
[37] The father also annexes a photograph which he says is further proof the relationship between the mother and her husband is ongoing. It is now conceded by him that the person in the background of the photograph is not the mother’s husband.
[38] The father makes an allegation that he overheard the mother’s husband talking in the background when the child was on the phone to his mother. No sensible weight can be given to this observation.
[39] Overall, whether taken singularly or together, the “new evidence” does not assist this Court. It can achieve nothing more than to reopen the substantive matters that should be examined within a full hearing and not within the summary jurisdiction that applies here.
[40] The remaining “other information” addressed in the father’s affidavit is essentially common ground and does not need to be adduced.
[41]In summary, there is no cogent or compelling reason to admit this evidence.
Should the Court direct a s 133 psychological report be obtained?
[42] Counsel (including initial counsel for the Central Authority, Ms Moore) sought a direction that a s 133 psychological report be ordered by the Family Court when the proceedings were first called on 25 March 2022.
[43] Counsel for the Central Authority indicated that the psychologist report writer, Martin Kelly, would be available to complete a report within eight weeks of any appointment. Counsel for the Central Authority also proposed a brief for the report writer. The report was sought on the basis that it was essential as an independent
assessment of L’s alleged objection to returning to the USA for the proper disposition of the application.
[44] Counsels’ application was declined, as it was again when Ms Beaumont added her weight behind the application on behalf of the child on 26 April 2022. The application was again renewed by all counsel at the hearing on 28 April 2022 and declined. On each occasion the Judge’s reason for declining the application was that it would unduly delay the hearing of the application for return.
Need for the report
[45] The Judge determined that the validity of L’s views may have been influenced by the father and that little weight could be attributed to L’s objection.12
[46] Mr Bryant submitted the Court erred in making this determination without any supporting psychological evidence concerning:
(a)what the basis of L’s objection is;
(b)whether the objection is reality based and/or affected by undue influence and/or able to be addressed by explanation or intervention;
(c)whether or not the child has sufficient maturity and understanding to recognise the implication of the objection; and
(d)having regard to the child’s age, cognitive ability, maturity and the options available how the child might respond if the Court makes an order for return despite the objection.
[47] L’s views were provided to the Family Court by his lawyer. Significantly, and most appropriately, Ms Beaumont did not purport to have the professional psychological qualifications to address (a) to (d). She also submitted that the Judge ought to have caused the inquiry of a psychologist as set out in [46].
12 Lewis v Andersen, above n 1, at [58]-[59], [64] and [66].
[48] In this case, Mr Bryant has been in contact with the Family Court Co-ordinators and been advised that there is no waitlist for s 133 reports to be allocated to a report writer. Counsel was advised the report could be completed in between 10 to 12 weeks.
[49]Mr Bryant submitted ordering a psychological report was:
(a)essential to give the best opportunity to ascertain L’s authentic views as possible; and
(b)not likely to adversely affect L given he is safe in the father’s care and has had recent significant in-person contact with the mother.
[50] Mr Jefferson submitted the obtaining of a psychological report would do little to assist the Court. He relied on the case of Mann v Mann, where Hinton J held the child’s views were:13
… occurring in a context where he has had exposure to negative information about is mother, has been exposed to inter-parental conflict, fears separation from his father, has been immersed in his father’s world view for ten months with very little exposure to alternative perspectives, if any, and has participated in discussions with his father, one of which apparently has involved preparation for the current interview assessment. All these factors have the potential to influence his views.
[51] In that context, Mr Jefferson submitted that, in the similar circumstances in this case, the Judge was entitled to form the view she had as to the child’s objection. The irony of that submission is that Hinton J was relying on a psychologist’s evidence to reach that decision.
[52] Mr Jefferson, in discussion between counsel and the Court, responsibly advised the Court that the predominant practice of the Court in cases concerning objection is to order a s 133 psychological report (subject, of course, to the child/ren having sufficient maturity and cognitive ability to express their views). All other counsel agreed that was the predominant practice.
13 Mann v Mann [2018] NZHC 1181 at [64].
Conclusion
[53] I consider this Court on appeal will be significantly assisted by an independent psychological opinion as to the matters set out at [46].
[54] It is only through the provision of such evidence that the Court can, in the case of an alleged objection, properly and forensically assess the authentic or inauthentic voice of the child.
[55] Whilst some delay will ensue as a result, it is not undue having regard to the history of how the parties have shared the care of the child. Further, the delay is occasioned by the right of the child to have his objection properly assessed. It also affirms his independent right to be heard given his age.
[56] I note the delay would not have occurred had this course been adopted when counsel for the Central Authority and the father requested a psychological report be obtained at the commencement of the proceeding.
[57] Whilst the delay is regrettable having regard to the principles that apply to Hague cases, as enumerated in LRR v COL, the Court cannot conduct a proper inquiry without such a report.14
Result
[58]I decline leave to adduce the affidavit of the father dated 14 July 2022.
[59] I order a s 133 psychological report be obtained from Leslie Abrahamson, psychologist.
[60] Upon receipt of the report, counsel are to confer and seek further directions from the Court.
14 LRR v COL, above n 5.
[61] The appeal set down for 15 August 2022 is vacated and is set down for one day on 20 February 2023.
[62] Ms Beaumont is to facilitate further contact between the child and his mother in the interim.
Doogue J
Solicitors:
Cuningham Taylor, Christchurch Malley & Co, Christchurch
CC:
S Jefferson QC, Auckland