C O L v L R R - [2018] NZHC 2902

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2018-485-681

[2018] NZHC 2902

BETWEEN
C O L

Appellant

AND

L R R

Respondent

Hearing: 31 October 2018

Counsel:

J C Gwilliam for Appellant D D Vincent for Respondent

Judgment:

8 November 2018

JUDGMENT OF SIMON FRANCE J

[1] This is an appeal from a decision of the Family Court declining to order the return to Australia of a child taken by its mother in breach of the father’s parenting rights.1 The initial application for return was brought by the Secretary for Justice as the New Zealand Central Authority under The Hague Convention. However, the carriage of the appeal has rested with the father.

Legal context

[2] This is what is known as a Hague Convention case. That is a Convention on Civil Aspects of International Child Abduction.2 Its twin objectives are:3

1      L v R [2018] NZFC 4040.
2      Convention on the Civil Aspects of International Child Abduction 1343 UNTS 98 (opened for signature 25 October 1980, entered into force 1 December 1983).
3      Article 1; and Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289 at [35].

C O L v L R R [2018] NZHC 2902 [8 November 2018]

(a)to secure the prompt return of children wrongfully removed to or retained in any contracting state; and

(b)to ensure the rights of custody and access under the law of one contracting state are effectively respected in the other contracting state.

[3]The structure of the legislation giving effect to this (Care of Children Act 2004

– “the Act”) is to identify the requirements necessary to engage The Hague Convention principles (s 105 of the Act) and then to set out the circumstances in which, the Convention being engaged, it is open to a Court nevertheless to not order return of the child (s 106). Of these exceptions, Tipping J in Secretary for Justice v HJ observed:4
[40] This said, all the exceptions must be approached with an understanding of their shared context, within a Convention that has the general purpose of deterring child abductions. That is achieved by ensuring prompt return in cases where no ground to refuse return is established. When such a ground is established the Convention envisages an inquiry into whether its deterrent purpose should prevail over the interests of the particular child or children.

[41] The core working provisions of the Convention illustrate these matters. The States parties wished to provide a mechanism by means of which children wrongly removed from one country to another were ordinarily to be subject to prompt return. As we have already indicated, the purpose of that return is to enable the relevant authority in the country of habitual residence, rather than the authority in the country to which the child has been removed, to decide what is best for the child’s future.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 2902
Decision Date: 8 November 2018

CaseChat Overview and Summary

The case C O L v L R R involves an appeal against a Family Court decision to decline an order for the return of a child taken by the mother from Australia to New Zealand, in breach of the father's parenting rights. The father had brought an initial application for return under The Hague Convention, but the appeal was carried by him. The legal issues before the court were whether the Family Court had erred in finding that the return of the child would place him in an intolerable situation and whether there was a grave risk that the return would expose the child to physical or psychological harm. The court assessed the evidence, including reports from child protection services and women's shelters, and found that while there had been violence and abuse in the relationship, it did not amount to a grave risk of harm to the child if returned to Australia. The court also found that the mother's vulnerability and potential inability to cope if returned to Australia did not necessarily place the child in an intolerable situation. The court held that the Family Court had erred in its assessment of the evidence, and the appeal was allowed. The court noted that the Australian Family Court system was similar to New Zealand's and that proceedings were likely to be initiated in Australia in the short term, which would address the child's long-term care arrangements. The court also noted that the father had shown an interest in being involved in the child's life and that there was no evidence to suggest he could not care for the child if the mother could not.
The final orders of the court were that the appeal was allowed, and the order for the return of the child was set aside. The court assumed that the Central Authority would assume responsibility for giving effect to the judgment and reserved leave to seek the imposition of conditions or other steps as required. No costs order was made as the mother was legally aided.

Orders