Cresswell v Roberts - [2023] NZSC 62

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.
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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 28/2023
[2023] NZSC 62

BETWEEN	CRESSWELL Applicant
AND	ROBERTS Respondent

Court:	O’Regan, Ellen France and Kós JJ
Counsel:	B J R Keith and A J Summerlee for Applicant V A Crawshaw KC, S R Jefferson KC and S M Wilson for Respondent
Judgment:	25 May 2023

JUDGMENT OF THE COURT

AThe applications for an extension of time to apply for leave to appeal Roberts v Cresswell [2022] NZCA 625 and the Court of Appeal’s decision declining the application to adjourn the substantive hearing are dismissed.

BThe application for leave to appeal (Roberts v Cresswell [2023] NZCA 36) is dismissed.
CThere is no order as to costs.

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REASONS

Introduction

The applicant seeks leave to appeal from a decision of the Court of Appeal.[1] This decision ordered the return of her two children to France under the Care of Children Act 2004 (the Act).[2] The applicant also seeks extensions of time to appeal earlier procedural decisions.[3] The proposed appeal would focus on the approach to s 106(1)(c)(ii) of the Act. That section provides a ground for refusing to make an order for return of a child where “there is a grave risk that the child’s return—(i) would expose the child to physical or psychological harm; or (ii) would otherwise place the child in an intolerable situation …”.

Background

[1]The names of the parties and the children have been anonymised.

[2]Roberts v Cresswell [2023] NZCA 36 (Brown, Goddard and Wylie JJ) [Substantive CA judgment].

[3]Roberts v Cresswell [2022] NZCA 625 (Brown and Goddard JJ) [CA leave judgment].

The background is set out in the judgment of the Court of Appeal on the substantive appeal.[4] We need only note the following by way of factual narrative. Up until October 2020 the two children lived in France with the applicant, their (New Zealand born) mother, and their (French) father. By 2020 the parents’ relationship had broken down. In October 2020, with the father’s agreement, the mother and the children came to New Zealand for a holiday. Their anticipated return to France, in April 2021, was frustrated by Covid‑19 documentation issues.
[4]Substantive CA judgment, above n 2, at [10]–[32].
The father sought return of the children to France under the Convention on the Civil Aspects of International Child Abduction.[5] An order was made by the Family Court under the Act for the return of the children.[6] The mother appealed from that decision to the High Court. She argued that the children would be at grave risk of being placed in an intolerable situation if returned to France because:
(a)they would be removed from their primary carer, the mother (at that point the effect of a decision of the French court…

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.

Continue reading Cresswell v Roberts

Details

AGLC: Cresswell v Roberts [2023] NZSC 62
Case: [2023] NZSC 62
Decision Date: 25 May 2023

CaseChat Overview and Summary

In the case of Cresswell v Roberts, the applicant sought leave to appeal a decision of the Court of Appeal which ordered the return of her two children to France under the Care of Children Act 2004. The applicant also sought extensions of time to appeal earlier procedural decisions. The proposed appeal would focus on the approach to section 106(1)(c)(ii) of the Act, which provides a ground for refusing to make an order for return of a child where "there is a grave risk that the child’s return…would otherwise place the child in an intolerable situation". The Court of Appeal had previously allowed the appeal, concluding that the risk of an intolerable situation for the children did not meet the "grave" threshold.

The Supreme Court considered whether it was in the interests of justice to grant leave to appeal, and whether the proposed appeal concerned an issue of general or public importance or raised the risk of a miscarriage of justice. The Court held that the proposed appeal did not raise any questions of general or public importance, and had insufficient prospects of success to warrant an extension of time. The Court also concluded that the Court of Appeal's assessment of the facts did not appear to be a miscarriage of justice.

The Supreme Court dismissed the applications for an extension of time to apply for leave to appeal and the Court of Appeal's decision declining the application to adjourn the substantive hearing. The application for leave to appeal was also dismissed, and no order was made as to costs.

This case highlights the importance of considering the interests of justice when deciding whether to grant leave to appeal, and the need for a strong case with sufficient prospects of success. The Court also emphasised the importance of applying the correct legal principles to the facts of the case, and not speculating about hypothetical situations.

Orders