Cresswell v Roberts

[2023] NZHC 1970

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THE NAMES IN THIS JUDGMENT HAVE BEEN ANONYMISED

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-329

[2023] NZHC 1970

BETWEEN

CRESSWELL

Appellant

AND

ROBERTS

Respondent

Hearing:

18 July 2023

Appearances:

S N van Bohemen, A J Summerlee, E S M L B G Kohistani for Appellant

V A Crawshaw KC and S M Wilson for Respondent J H Wren – Lawyer for Child

Judgment:

26 July 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 26 July 2023 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CRESSWELL V ROBERTS [2023] NZHC 1970 [26 July 2023]

Introduction

[1]        On 3 July 2023, at 4.59 pm, this Court received a notice of appeal against a decision of the Family Court issuing a warrant to enforce an order for the return of two children to France. The notice of appeal was accompanied by a without notice interlocutory application for a stay of execution of the warrant.

[2]        At 5.10 pm, Gendall J issued a minute making an order staying the execution of the warrant until further order of the Court, describing it as “an interim measure only in light of what appears to be the extreme urgency in this matter”.

[3]        The following day an application for rescission of the stay order was filed by the respondent on a Pickwick basis. On Monday 10 July, Mander J directed the stay and recission applications be heard urgently. I heard the applications on 18 July 2023.

[4]        As the respondent, Mr Roberts, had arrived in New Zealand at the beginning of July to uplift the children and return them to France, and had been prevented from doing so by the stay, it was imperative that I gave my decision promptly. On the morning of 19 July 2023, I issued a results decision rescinding the stay, thus allowing the Family Court’s orders to take effect. I advised my reasons would follow. This decision sets out my reasons.

Background

[5]        The appellant, Ms Cresswell, is a New Zealand citizen. In 2014, she married the respondent, Mr Roberts, a French citizen. They lived together in France.

[6]        There were two children of the marriage: Amelia, born on 26 June 2015, who is now eight years old, and Brigitte, born on 7 May 2017, who is now six years old.

[7]        The father operates a business in France, and the mother was a stay-at-home mother. Unfortunately, the relationship between  the  parents  deteriorated.  In  March 2019, the parties undertook marriage counselling, but by October that year, the mother said she decided to seek a divorce. The relationship became fractious, with

the mother alleging psychological and physical abuse from the father which was strenuously denied by him.

[8]        In September 2020, the mother wanted to return to New Zealand for a holiday and in October 2020 she travelled to New Zealand with the two children. It was initially planned that she would return to France in February 2021, and indeed it appears she tried to return to France on 8 April 2021, but that was thwarted because of the absence of a negative COVID-19 test for one of the girls. The mother then returned to Christchurch with the girls and resolved to stay in New Zealand with them.

[9]        At around the same time, proceedings were commenced by the father in the Family Court in France in which the Court considered habitual residence of the children, their care arrangements and other related matters.

[10]      On 23 July 2021, the Family Court in France issued an interim judgment. It held that the children’s habitual residence was France. The father was granted care of the children for 44 weeks of the year and the mother, the balance.

[11]      On 16 September 2021, the father filed an application in the Family Court in Christchurch seeking an order under s 105 of the Care of Children Act 2004 (CoCA) that the children be returned to France. CoCA incorporates into New Zealand law, the Convention on the Civil Aspects of Child Abduction (commonly known as the Hague Convention), which was subsequently ratified by New Zealand. It is an international agreement between a number of countries which aims to make sure that children who are taken overseas are returned as quickly as possible to the country where they usually live. It assumes the courts in the country where the child usually lives are best able to make decisions about the child and only permits an application to be refused in specified circumstances, including where there was a grave risk that the child’s return would expose him or her to physical or psychological harm or would otherwise place the child in “an intolerable situation”.1

1      Care of Children Act 2004, ss 105 and 106C.

[12]      On 21 December 2021, the Family Court in Christchurch ordered the return of the children to their country of habitual residence, being France.2

[13]      The Family Court’s decision was appealed by the mother to this Court.3 In the decision that followed, Doogue J found that the mother’s mental health had deteriorated in France and it was likely she had been suffering from post-traumatic stress disorder (PTSD).4 The Judge pointed to the difficulties which the mother would experience returning to France to live, saying those psychological stressors would likely trigger the mother’s PTSD, with consequent impairment of her parenting.5 She also considered the children would be in an intolerable situation in the event they were not in the care of their primary parent, the mother, as would be the position under the orders made by the Family Court in France.6 The High Court accordingly quashed the order for return of the children.

[14]      On 12 December 2022, the Court of Appeal granted the father leave to appeal the High Court decision.7 Both parties sought leave to adduce further evidence, and those applications were dealt with in the substantive judgment.8 The further evidence admitted included updating evidence from the father’s French lawyer regarding the orders made by the French Family Court on 9 February 2023.9 The interim orders had been modified on the application of the father and removed the risk of prolonged separation from the mother as the children’s primary carer, as the children would not be away from their mother for more than a week at a time.10

[15]      The Court of Appeal determined that on the circumstances as it now understood them to be, the order for return of the children did not give rise to a grave risk of intolerable situation. The Court concluded as follows:11

There will be transitional challenges for the children, but they can be expected to quickly readapt to speaking French and to life in France: that is after all

2      Roberts v Cresswell [2021] NZFC 12911.

3      Cresswell v Roberts [2022] NZHC 1265.

4      At [190]–[191].

5 At [200].

6      At [122(a)].

7      Roberts v Cresswell [2022] NZCA 625.

8      Roberts v Cresswell [2023] NZCA 36 at [102]–[111].

9 At [108].

10     At [166]–[167].

11 At [213].

where the parents made their home, where the children were born, and where the children were initially raised. As we have already acknowledged there will be significant challenges for the mother in returning to France. But the risk that these challenges will result in an intolerable situation for the children did not materialise before she came to New Zealand in October 2020, and the risk that that will occur on her return falls well short of the description “grave”.

[16]      The Court reinstated the order made by the Family Court under s 105(2) of CoCA. They also urged the parents to “strive to reach agreement about a reasonable approach to the return of the children to France”.12 The Court made suggestions as to the timing and proper arrangements for returning the children to France but concluded by saying:

[220] If agreement cannot be reached about directions to secure the return and safe landing of the children, appropriate directions may be sought from the Family Court. We refer the proceeding back to the Family Court for that limited purpose.

[17]      On 27 March 2023, the mother applied for leave to appeal to the Supreme Court, and on 25 May 2023 the Supreme Court declined that application.13

[18]      On various dates from 7 March 2023 onwards, the father sought, through his lawyers, to reach agreement on how the children were to be returned to France.

[19]      On 13 June 2023, about three weeks after the Supreme Court’s decision was released, the Family Court Judge, Judge Hambleton, issued a minute setting out the following:

The Court of Appeal decision concludes with the Court urging the parents to strive to reach agreement about a reasonable approach for [Amelia and Brigitte’s] return to France. Failing agreement, directions were to be issued by this Court; the proceedings were referred back to the Family Court for that limited purpose.

The Court of Appeal recommended that the girls would have “some time to adapt to life in France before beginning a new school year later in 2023”.

It seems the new academic year starts on either 1 or 4 September 2023.

I ask counsel to advise the Court by 5pm on 4 July 2023 of the agreed arrangements for their return to France.

12 At [218].

13     Cresswell v Roberts [2023] NZSC 62.

If there is no agreement, then by that same date, Counsel are to advise the Court of each parent’s proposal, recommendations from Lawyer for Child and directions as to how the Court is to hear the matter; for instance, submissions only hearing or on the papers.

[20]      On 16 June 2023, the mother finally responded to the father’s proposals as to return arrangements for the children. Her lawyer’s letter commenced by saying the following:

[2]As a result of the decision of the Court of Appeal to order the return of the parties’ children to France, and unless she and [Mr Roberts] are able to reach some agreement, our client has to decide between:

(a)Going back to France with the girls; or

(b)Staying in New Zealand and the girls going back to France without her.

[3]From our client’s perspective, neither option is desirable for the girls. The issue for her is which is the less harmful option for them.

[4]Our client has agonised over which of those choices will be less harmful for the girls. For the reasons set out below, she has arrived at the conclusion that she will not accompany the girls back to France, and that she will remain in New Zealand.

[5][Ms Cresswell] will apply to the French Courts for orders domiciling the girls in New Zealand.

[21]      The letter then goes on to explain the personal difficulties the mother would face living in France and says “she believes that the return to France she faces will causes her psychological harm, which will have a significant, negative impact on the girls”. The letter concludes by inviting the father to reach an agreement as to the terms of a parenting arrangement “that can protect the girls from that harm”. It proposes an arrangement where the girls would live principally in New Zealand but spend time in France for extended periods in the holidays.

[22]      In light of the mother’s decision not to return to France, on 21 June 2023, the father advised he would travel to New Zealand to collect the children.

[23]      On 22 June 2023, the father applied, without notice, for an order discharging the orders  of  16  September  2021  preventing  removal  of  the  children  from  New Zealand and for return of their travel documents. His application was

accompanied by an affidavit and a memorandum of counsel in support and was served on the mother on a Pickwick basis.

[24]      On the same day, the mother’s counsel filed a memorandum in response to the application. Relying on the criteria in Martin v Ryan, it said the application should proceed on notice and there should be directions made allowing a timeframe for filing a response and for involvement of lawyer for the child.14

[25]      The following day, counsel for the father filed a memorandum in the Family Court. It pointed out that the application for a warrant under s 119 of CoCA was not made without notice, it was filed when the original application for orders for return of the children was filed on  behalf  of  the  father  through  the  Central Authority  on 16 August 2021. Ms Crawshaw KC pointed out that it was only the discharge of the order preventing removal which was filed on a without notice basis, saying that it was “simply a corollary of the implementation orders that are sought on behalf of the applicant”. The memorandum also opposed the suggestion that lawyer for the child file a memorandum advocating for the children, saying the proceedings “are almost at an end” and the merits of the case should not be “relitigated”.

[26]      On 28 June 2023, counsel for the mother filed a document described as a “notice of defence” opposing:

(a)the without notice application to discharge orders preventing removal of the children from New Zealand; and

(b)the application for a warrant to enforce under s 119(2).

[27]      In this document, the mother’s lawyers pointed out that both the High Court and Court of Appeal found there was a grave risk to the children if they were to be separated from their mother, their primary carer. They also pointed out that since the Court of Appeal’s decision, the mother had decided not to return to France. They noted that the father may arrive in New Zealand on 3 July 2023 and he had not given any assurance that he would not uplift the children. They asked that the orders preventing

14     Martin v Ryan [1990] 2 NZLR 209 (HC).

the children’s removal from New Zealand remain in place until the application for a warrant for enforcement was determined and that that application itself be declined.

[28]      The Family Court then issued a further minute on the same date. It recorded that the father’s without notice applications were provided to the mother’s counsel “as a courtesy”, and that the Judge had read the memoranda filed. She then noted that “[a] preliminary issue is the passports for the children” with one of the children no longer having a current passport. She asked counsel to confer to agree on the methodology for issue of a new passport for that child, and said: “In the absence of agreement then again directions can be sought on a without notice basis, but I hope that will not be necessary.” She went on to say that:

I am not prepared, at this point, to make the orders sought on a without notice basis without certainty that both children can travel and when they would travel if the orders were made in [Mr Roberts’] favour.

[29]      The following day, counsel for the father filed a further memorandum, which was not served on the mother. It sought orders implementing the return of the children and was accompanied by the father’s affidavit setting out his plans for arranging the return of the children, noting that he had flights booked for him and the children to return to France on 5 July 2023. Those plans included uplifting the children one day in advance of his arrival and placing them in Oranga Tamariki care overnight.

[30]      On the following day, 30 June 2023, the Judge issued a further minute which recorded the following:

I decline to grant [Mr Roberts’] without notice application. The application lacks specificity and urgency.

The Court’s intention was for the children to return to France in time to begin school in the first week of September, with some settling time beforehand.

The father is not in New Zealand and would not be on his chronology when orders (including the order preventing removal) are to become effective.

Both children do not have passports to enable them to travel.

It is extremely unsatisfactory to propose that the children will be uplifted from school and placed in Oranga Tamariki care overnight until the father arrives.

Such an arrangement will be contrary to the recommendations and observations of the Court of Appeal. The Court of Appeal recommended an approach that [was] reasonable, minimised stress, disruption and ensured the children’s return to France was as happy as possible (refer to paragraphs [218] and [219] of the decision).

The Court will entertain another application from the father when he is in Christchurch and when he has evidence that the mother has refused to engage in an application for a passport for [Brigitte] and/or their return to France. It was my intention when I issued the last minute that if the parents could not agree on the guardianship issue of release of passports then an application could be made to address that.

If any application is made without notice, then it must comply with the Family Court Rules 2002.

[31]      On the same day, the mother filed and served a memorandum of counsel for the respondent and affidavits from her mother and herself in support of her notice of defence.

[32]      On 2 July 2023, the mother filed a further memorandum. In it, her counsel submitted:

… that the issue of a warrant pursuant to section 119, and the discharge of orders preventing the children’s removal from New Zealand:

(a)Is not automatic; and

(b)Cannot “be dealt with on a summary basis”.

[33]      On 3 July 2023, the father filed a further affidavit explaining that he was now in New Zealand, having arrived on 1 July 2023, and setting out his attempts to cooperate with the mother over an orderly return for the children and his proposal for arranging emergency France passports for the children by having them accompany him to the French embassy.

[34]On the same day, the Judge issued the following minute:

I have considered the further evidence and memoranda filed on behalf of  [Mr Roberts], and the  memorandum  and  evidence  filed  on  behalf  of  [Ms Cresswell].

The Court of Appeal has decided that [Amelia and Brigitte] are to return to live in France. The Supreme Court has refused leave for appeal and endorsed the Court of Appeal’s decision.

The only matter remaining is implementation of the Court’s order.

It is very clear from [Ms Cresswell’s] evidence filed today and the correspondence sent on her behalf by counsel (exhibited to the proceedings) that:

a.that [Ms Cresswell] has decided that she will not return to live in France; and

b.[Ms Cresswell] will  not  voluntarily  hand  over  the  children  to [Mr Roberts].

My concern last week was that [Mr Roberts] was not in New Zealand when the warrant he sought was to be issued. That is no longer a concern. When the children are uplifted, they can be placed directly in his care.

In the absence of a warrant being issued, I do not consider that the Court’s order for the children to return to France, will be implemented and complied with.

The issuing of the warrant is therefore both necessary and in the children’s welfare and best interests.

I direct that a warrant is to be issued authorising a police officer/social worker to uplift the children and deliver them to [Mr Roberts]. [Mr Roberts] is to provide an address for the children to be delivered to, to the Registrar within 1 hour of this decision being issued.

Upon confirmation  from  Lawyer  for  Child  that  both  children  are  in  [Mr Roberts’] care, then the order preventing removal will be discharged.

[35]      This decision of the Family Court is recorded in the agreed chronology as being received at 1.33 pm on 3 July 2023. On the same day, Ms Cresswell filed in this Court:

(a)a notice of appeal against the order for issue of a warrant; and

(b)a without notice application for an order staying the execution of the warrant.

[36]      As noted at the outset of this decision, an interim stay was granted given the extreme urgency of the situation and without consideration of the merits of the application.

[37]      The following day, Mr Roberts filed a without notice application to rescind the stay order.

[38]      While brought on very quickly, the current hearing allowed a considered review of the merits of the application for a stay, and I concluded it should be rescinded. The balance of the judgment sets out my reasons for this decision.

The legal principles applying to an application for recission

[39]      The hearing involved an application for recission of an order under r 7.49(1) of the High Court Rules 2016. That rule provides that a party affected by an interlocutory order may, instead of appealing against the order or decision, apply to the Court to vary or rescind the order or decision if that party considers that the order or decision is wrong. That can include where the order has been made in circumstances of urgency and without the benefit of full argument.15 There is no dispute that the initial stay order was made in such circumstances.

[40]      An application to rescind without notice orders requires a de novo hearing of the original application. The onus remains on the original applicant.16

The application

[41]      As the hearing was effectively a fresh application for a stay, counsel for the appellant advanced their submissions first. In summary, they argued:

(a)the stay order was appropriate having regard to the principles set out in the Court of Appeal decision WAH v WTW;17

(b)the proposed appeal had substantive and procedural merit;

(c)the appellant had not failed to disclose material facts in her application for a stay and notice of appeal; and

(d)the respondent’s argument that there was no jurisdiction to grant the stay of enforcement because the decision was not appealable as of right,

15     See Payne v National Party [2008] 3 NZLR 233 (HC).

16     Kennedy Point Boatharbour Ltd v Barton [2022] NZHC 257, [2022] 2 NZLR 696 at [15].

17     WAH v WTW [2010] NZCA 344 at [20]–[23].

and leave had not been sought, should be rejected as the decision to issue a warrant was not a decision that required leave.

[42]      I intend to deal with the jurisdiction issue first as that, in my view, is determinative of the application.

Was there jurisdiction to file the appeal?

The respondent’s submissions

[43]      The respondent argued that this Court did not have jurisdiction to make the stay order because the appeal was not properly filed in this Court.

[44]      The orders made in the Family Court’s 3 July minute (including for the issue of a warrant), were, in Ms Crawshaw’s submission, orders made on interlocutory applications. Consequently, s 143 of CoCA applied. That section relevantly provides:

143     Appeals to High Court

(1)This subsection applies to a decision of the Family Court or District Court, in proceedings under this Act (other than criminal proceedings), to—

(a)make or refuse to make an order (other than an interlocutory or interim order); or

(b)dismiss the proceedings; or

(c)otherwise finally determine the proceedings.

(2)A party to proceedings in which there is made a decision to which subsection (1) applies, or a child to whom those proceedings relate, may appeal to the High Court against the decision. However, if the proceedings are under section 46C or 46R, the party or child may appeal only with the leave of the High Court.

(3)A party to proceedings under this Act in the Family Court or District Court in which an interlocutory or interim order is made, or a child to whom those proceedings relate, may, with the leave of the Family Court or District Court (as the case requires), appeal to the High Court against the order.

[45]      The effect of that section is that appeals against interlocutory or interim orders can only be made with the leave of the Family Court. It is common ground that leave to appeal has not been sought or granted.

[46]      In arguing that the Family  Court’s  orders  were  interlocutory  in  nature,  Ms Crawshaw points to r 8 of the Family Court Rules 2002. That rule provides the following definition of “interlocutory application”:

(a)means an application in proceedings or intended proceedings for an order or a direction relating to a matter of procedure or for some relief ancillary to the orders or declarations sought in the proceedings or intended proceedings; and

(b)includes—

(i)an application for a rehearing; and

(ii)an application to review an order made, or a direction given, on an interlocutory application.

[47]      Ms Crawshaw argues the application for a warrant to enforce was clearly ancillary to the proceedings seeking a return order under s 105 of the Act. Without leave having been sought and obtained from the Family Court to appeal the decision of 3 July 2023, the appeal was not properly filed in this Court under r 20.6 of the High Court Rules. There is, therefore, no jurisdiction under r 20.10(2)(b) to order a stay of enforcement against the warrant. The stay order was therefore wrongly made and ought to be rescinded.

The appellant’s submissions

[48]      The appellant submits this Court had jurisdiction to grant a stay pending a decision on the appeal. This is because the Family Court’s decision to issue a warrant was appealable as of right under s 143(1)(c) of CoCA as the final determination of the application for a warrant, and was not an interlocutory order requiring leave under    s 143(3).

[49]      In support of this submission, the appellant relies on the judgment in Kibble v Lambda.18 There, a father applied to vary the parenting orders to which he had previously consented. The mother opposed on the basis that such an application was an interlocutory application which could not be appealed without leave of the Family Court.19

18     Kibble v Lambda [2016] NZHC 1832, [2016] NZFLR 1038.

19 At [1].

[50]      Palmer J considered the limitation on appeal rights in s 143 was not to be applied with “technical legalism” but in accordance with the context and purpose of  s 143 in limiting appeals to decisions that finally determine a manner, rather than decisions that arise along the way in the course of doing so.20 As a result, he held that the High Court had jurisdiction to hear the appeal and the application for a stay pending determination of the appeal.21 Here, too, counsel for the appellant argues that a technical approach should not be adopted when the practical effect of the order is that the children will be removed from the jurisdiction.

[51]      In oral submissions, Mr Summerlee argued the application for a warrant is analogous to initiating bankruptcy proceedings following successful proceedings claiming a judgment debt. They are separate proceedings, albeit one follows from the other, and they should be determined on their own merits rather than seen as ancillary relief to the preceding judgment, which in this case is the s 105 order.

Discussion

[52]      Counsel could not direct me to a case in which the Court has previously considered the nature of a warrant to enforce for the purposes of s 143. While the decision in Hall v NZ Central Authority dealt with similar circumstances, it does not appear that the question of jurisdiction was raised there as it is not addressed.22

[53]      While counsel for the appellant argued the decision to issue a warrant was a decision which otherwise finally determined the proceedings and  so came within     s 143(1)(c), I do not accept that. The proceedings were finally determined when the Supreme Court declined leave to appeal the Court of Appeal’s decision granting the order under s 105. To suggest there was no finality in the s 105 decision until the warrant was issued mischaracterises the effect of the Supreme Court’s decision. The parties were obliged to comply with that order from that point on. While both the Court of Appeal and the Family Court hoped the order could be implemented by agreement, that did not prove possible. It was only when the District Court Judge was satisfied that the order would not be implemented by agreement that she issued the

20 At [36].

21 At [38].

22     Hall v NZ Central Authority [2016] NZHC 780.

warrant to enforce. I am therefore satisfied that the decision to issue a warrant was not a decision that finally determined the proceedings.

[54]      I consider that the decision to issue a warrant is properly characterised as an interlocutory order under s 143(3). While there is no definition of “interlocutory order” in CoCA, that term is defined in the District Court Rules 2014 as “an order on direction of the court that … concerns a matter of procedure or grants some relief ancillary to that claimed in a pleading”. The term “interlocutory application” in some civil proceedings is defined in similar terms in the Family Court Rules as set out at

[46] above.

[55]              Importantly, the definitions of interlocutory application and interlocutory order include an application for ancillary relief to the orders sought in the proceedings. The word “ancillary” means “subservient, subordinate; auxiliary, providing support; now esp. providing essential support or services to a central function or industry, …”.23 In my view, an order issuing a warrant to enforce is clearly ancillary to a s 105 order, in the sense of assisting that order to be implemented. It does not commence a new stage in the proceedings with new consequences, as is the case in a bankruptcy application following judgment. Its only purpose is to effect the s 105 order.

[56]              I also consider it is the kind of order which was intended to have limited appeal rights under s 143(3). In T v E the Family Court explained the rationale for the leave requirement in s 143(3) in the following way:24

The policy reason behind this section is to prevent proceedings in the Family Court being unduly protracted. If there was an automatic right to appeal of interim decisions, then a person who had greater resources or wanted to use tactical procedures could appeal such decisions, and with the normal time frames that would pass before the appeal is to be dealt with, it could make any particular case unduly protracted. Parliament considers the better course of action is to have the case concluded and then when a final order is made that can be the subject of an appeal. The High Court can reverse the decision if satisfied that the appeal has merit. Also the Family Court is a specialist Court and deals with issues arising in this case on a daily basis.

23     The New Shorter Oxford English Dictionary (Oxford University Press 1993), Oxford.

24     T v E FC Auckland FAM-2007-004-2481, 2 July 2008 at [4].

[57]              As Ellis J said in Malone v Auckland Family Court, after citing the above explanation, “[T]he Family Court is required by s 143(3) to play what has been described as a ‘gate-keeping’ role in relation to interlocutory appeals.”25

[58]              In my view, the same reasoning applies to ancillary orders. Here, a final order has been made under s 105 CoCA and the only issue in dispute is how it will be effected. It could not have been intended that an appeal of such a decision would be permitted as of right, thus frustrating the ability for the Family Court Judge to see the final order carried out. The practical effect of what the mother seeks in appealing the decision to issue a warrant is a decision that the s 105 order be rendered ineffective despite all her appeal rights being exhausted. That is plainly the kind of appeal where the Family Court’s “gatekeeping” role under s 143(3) should apply.

[59]              I find, therefore, that this Court did not have jurisdiction to grant the stay because the notice of appeal had been filed without the leave of the Family Court.

[60]              Given my conclusions on jurisdiction, strictly speaking I do not need to address the balance of the appellant’s arguments, though counsel for the respondent and lawyer for the child thought it would be useful if I did. I agree that in the event I am wrong on the question of jurisdiction, it would be helpful for the parties if I expressed my view on the other key arguments raised.

Was the stay order wrong?

The appellant’s submissions

[61]              The appellant argues that the stay order was appropriately granted having regard to the legal principles articulated in the Court of Appeal’s decision WAH v WTW.26 Those principles are:

(a)the overriding consideration in such an application is the welfare of the children;

25     Malone v Auckland Family Court [2014] NZHC 1290 at [29].

26     WAH v WTW, above n 17, at [20]–[23].

(b)whether or not the appeal will be rendered nugatory if the stay is refused will be a highly relevant consideration;

(c)a stay will be more likely to be granted where there are strong grounds to support the appeal and vice versa;

(d)the arguments in favour of a stay will be stronger if the decision under appeal has the effect of significantly changing the status quo;

(e)the Court will have regard to any evidence of lack of bona fides in the filing of an appeal and an application for stay as a consequence; and

(f)each case will turn on its own facts. The length of time before the appeal is likely to be heard, the current circumstances of the parties and children, and the consequence of delay pending the hearing of the appeal will all be relevant.

[62]              The appellant argues all these factors point in favour of the stay being granted pending the appeal of the issue of a warrant of enforcement.

[63]              In terms of the children’s best interests, Mr van Bohemen submits that enforcement would cause significant harm to the children, primarily because it will result in them being separated from their primary caregiver, their mother, as she will now not be returning to France. Furthermore, as confirmed by Mr Wren, lawyer for the children, the children do not want to return to France if that means they are separated from their mother.

[64]              Mr van Bohemen also says the decision under appeal totally changes the status quo by removing the children from New Zealand and from their primary carer. The appeal would be rendered moot if the children are taken to France and so beyond the jurisdiction of the New Zealand courts.

[65]              In terms of the mother’s bona fides, Mr van Bohemen argues the stay application was genuinely made. The mother put the Family Court and respondent on notice that she wanted to be heard on the applications and there was no delay on her

part. Mr van Bohemen also said that her case is not an attempt to relitigate the s 105 order. She accepts the findings of the Court but says those findings are material to her grounds for opposing the issue of a warrant to enforce that order.

[66]              Mr van Bohemen also argues that the interests of these children support the continuation of the stay. He says their future is at stake. They may otherwise have to return to France after nearly three years and be separated from their mother, which the Court of Appeal considered would be intolerable for the children.

[67]              Finally, it is submitted that the appeal has merit, both on substantive and procedural grounds.

[68]              Mr van Bohemen says the decision to issue a warrant under s 119 is discretionary as the section states the Court “may” issue a warrant. As the issue of a warrant is not automatic, and the appellant had filed opposition to its issue, the Family Court should not have proceeded to determine it without hearing from both the appellant and from the lawyer for the children.

[69]              Mr van Bohemen said there was authority for the Court to decline an enforcement order based on a material change in circumstance. Specifically, in Butler v Craig, the Court of Appeal observed the following:27

[42] We consider that a Family Court Judge could decline to make an enforcement order if a material change in circumstances had occurred since the order was made. The change would need to be of such significance that enforcement of the order would be pointless. An example of the type of exceptional circumstance in which a Court might decline to enforce a return order would be the death of the parent at whose instigation the order was sought.

[70]              Mr van Bohemen also  relied on the English Court of Appeal decision in     Re W.28 There, the Court held that the test for rehearing an application to vary a final order made under the Hague Convention was whether “there has been a fundamental change of circumstances which sufficiently undermines the basis of court’s decision and order to require the application to be reheard”.29

27     Butler v Craig [2008] NZCA 198, (2008) 28 FRNZ 112.

28     Re W [2018] EWCA Civ 1904.

29 At [37].

[71]              Mr van Bohemen says, here, there had been such a significant change of circumstances since the Court of Appeal’s decision that it was no longer appropriate to issue the warrant, having regard to the welfare of the children. The mother’s decision not to return to France, and the children’s views on returning to France without their mother as reported by lawyer for the child, constituted proper reasons for declining the application for a warrant to enforce the s 105 order.

[72]              Mr Summerlee then argues that there were also procedural errors in the making of the decision which justified the appeal. He pointed out that the only formal application under s 119 in the proceeding was filed on 16 September 2021 alongside the original application for a s 105 order. He submits that under s 119(3) an order for a warrant can only be made “on the making of an order under section 105(2) for the return of the child”. Because the application was made before there was jurisdiction to consider it, he submits the application was defective from the outset.

[73]              In any event, Mr Summerlee submits that the 16 September 2021 application for a warrant was dismissed by the Family Court on 22 June 2023 and, apparently again, on 30 June 2023. It is unclear, therefore, what application formed the basis of the 30 June 2023 dismissal and the subsequent grant of the warrant on 3 July 2023.

[74]              He also submits the s 119 application was made in breach of r 220(2)(a)(ii) of the Family Court Rules because it was made without notice and that is only permitted where the delay of making the same application on notice “would or might entail … serious injury or undue hardship, or risk to the personal safety of the applicant, or any child of the applicant’s family, or both”. The application did not disclose such injury or hardship in Mr Summerlee’s submission.

[75]              Mr Summerlee also submits that the application was granted contrary to the requirements for without notice applications which were articulated in Martin v Ryan.30 In that case, it was said that orders should only be made on a without notice basis when:31

30     Martin v Ryan, above n 14.

31     At 226–227.

(a)there is a clear case on the merits;

(b)there would be irreparable injury if the application proceeded on notice;

(c)there has been no delay by the applicant;

(d)the effect of the order will be only brief and provision; and

(e)there are strong grounds for overriding the conventional requirements of natural justice.

[76]              In Mr Summerlee’s submission, the s 119 order was made on a without notice basis contrary to all of these factors except (c).

[77]              By making the order without hearing from the appellant, counsel argues that the Family Court breached her rights to natural justice as enshrined in s 27 of the New Zealand Bill of Rights Act 1990. The Court also breached s 6 CoCA and the children’s rights under art 12 of the United Nations Convention on the Rights of the Child.32 The Family Court afforded no opportunity for the children to participate in this significant determination on their future.

Discussion

[78]              I accept, as does the respondent, that the relevant legal principles applying to an application for a stay of a judgment involving CoCA issues are those confirmed by the Court of Appeal in WAH v WTW.33

[79]              Dealing with those criteria, I accept the appeal would be rendered nugatory as a result of declining a stay and the status quo will, in practical terms, be changed if the warrant is enforced. However, those matters are not determinative of whether the stay should be granted.

32     Convention on the Rights of the Child GA Res 44/25 (1989).

33     WAH v WTW, above n 17.

[80]              In terms of the overriding consideration of the children’s welfare, and the issue of whether the children’s views needed to be obtained on the application for a warrant to enforce, I consider the starting point is that the children’s interests have been fully taken into account in the course of the s 105 application. There is no requirement to obtain the children’s views on every single step of the proceeding, particularly where it involves a procedural decision rather than a substantive decision.

[81]              In Newton v Family Court, the Court of Appeal accepted that a child’s view need not be sought on every procedural step in proceedings under CoCA,34 although acknowledging that it was not possible nor appropriate to draw “a bright line between substantive decisions, in respect of which a child must have an opportunity to express their views, and procedural matters, where that is not required”.35

[82]              Here, I consider the Judge reasonably assumed the children’s views had been taken into account in the various hearings which led to a final s 105 order. All that she was dealing with was the mechanics of implementing that order. She was clearly endeavouring to do that with the best interests of the children in mind. She rejected the father’s proposal to take the children from their mother prior to the father arriving in New Zealand. She was also anxious to see that orderly arrangements made for the children to obtain new passports before they travelled to France. It was these concerns which led her to refuse the first two applications before, on 3 July, finally granting the warrant to enforce.

Does the appeal have merit?

[83]              In my view, the pivotal issue is whether the appeal has merit. The appellant has approached this issue on the assumption that a final s 105 order can be revisited, in practical terms, by reconsidering the circumstances at the time of issuing the warrant. I do not consider there is scope to do that in all but a very confined set of circumstances. Those circumstances were considered in Butler v Craig.36

34     Newton v Family Court [2022] NZCA 207, [2022] 3 NZLR 846 at [230].

35 At [233].

36     Butler v Craig, above n 27.

[84]              Butler v Craig concerned whether the High Court could rely on its inherent jurisdiction to discharge a return order that was otherwise beyond appeal. The Court of Appeal concluded Panckhurst J was right to hold the High Court did not have jurisdiction to make the order sought.37 The Court did, however, make the obiter observation that, in exceptional circumstances, the Family Court could decline to make an enforcement order, such as where enforcement of the order would be pointless because the parent who sought the order had died.38 For reasons I come to shortly, that threshold is not reached, even taking the appellant’s case at its highest.

[85]              The High Court also considered an appeal against the issuing of a warrant under s 119 in Hall v NZ Central Authority.39 In that case, an order for return had been made. The mother made an urgent application to defer the return and the Central Authority sought a warrant to enforce, which was granted. The mother appealed the issue of the warrant asserting a change in circumstances since the order was made. This included evidence that the New Zealand Police had commenced a criminal investigation of the children’s father and at the time she did not have the appropriate travel documents to travel to the United States of America and remain there, and she sought a permanent deferral in the event she could not obtain such documents.

[86]              Justice Whata dismissed the mother’s appeal saying that the “exceptional circumstances” in which a Judge might have jurisdiction to refuse a warrant were “very rare”.40 In his view, the applicant had erroneously assumed “that the Judge possessed jurisdiction to permanently refuse to issue a warrant based on the alleged safety concerns”.41 He concluded “there was no proper basis for the Judge to defer the warrant indefinitely and to do so would have undermined the clear policy of the legislation”.42

[87]              In short, the law is that there must be truly exceptional circumstances which would render the issue of the warrant “pointless” before a Court would decline to issue a warrant.

37 At [53].

38 At [42].

39     Hall v NZ Central Authority, above n 22.

40 At [35].

41 At [31].

42 At [46].

[88]              Turning to the evidence in this case, I do not consider the mother’s decision not to return to France could be argued to meet the high threshold articulated in Butler v Craig. This is not a change which renders the issue of a warrant “pointless”. Clearly, the father is prepared to take the children back to France and is willing to share custody with the mother if she returns to France. The father is entitled to seek support from the Court to enforce a valid s 105 decision.

[89]              Throughout the Hague Convention proceedings, the mother’s diagnosis of having suffered from PTSD has been before the Court. The Court has also been aware of the difficulties she would have returning to France. As the Court of Appeal said: “Returning to France will undoubtedly be very difficult and stressful for the mother.”43 Furthermore, her position before the French Family Court was unequivocally that she would not return to France.44 Thus, her fluctuating views on whether she would return to France and the reasons for that are not new. They do not, in my view, constitute a fundamental change in circumstances.

[90]              I therefore accept that the mother’s assertion that she will now remain in  New Zealand falls well short of the exceptional circumstances in which the Family Court might decline to issue a warrant under s 119. It does not raise an issue which would render the enforcement of the return order “pointless”. Moreover, the mother’s options are not entirely closed off if the children return to France. As she said in her letter of 16 June 2023, she could commence proceedings in the French Family Court for orders domiciling the girls in New Zealand.

[91]              I also do not consider that the English cases relied on by counsel for the appellant assist her. They all deal with applications to revoke the substantive order. Here, the appellant disavows seeking to do that. I consider it would be entirely inappropriate to oppose the issue of a warrant on the basis the s 105 order is no longer appropriate when there is no accompanying application to change or vary it.

[92]              In the case of Re W, the Court rejected the submission that the return order could be avoided by declining to enforce it. That case concerned an application to set

43     Roberts v Cresswell, above n 8, at [9].

44 At [164].

aside the previous order under the Hague Convention on the basis there had been a significant deterioration in the mother’s mental health since it was made and, as a result, the mother could not return to Spain with the child. The case did not determine whether the High Court had the power to set aside or vary a final order under the Hague Convention when there was alleged to have a change of circumstances.45 But the Court expressed the view it would need to be a fundamental change of circumstances.46 More importantly, the Court also expressed the view that it would not be appropriate to address the change in circumstances “by the limited expedient of declining to enforce it and by staying the order, perhaps indefinitely”.47 The Court went on to say:48

This would result in a very unsatisfactory situation not least because it would potentially be incongruent with the structure of Article 11(6)-(8) of BIIa which depends on there being “an order for non-return” and not a stayed order for return.

[93]              The Court went on to say that the bar for reviewing and setting aside a final order under Hague Convention should be set high because “there would clearly be a risk for the party seeking to take advantage of any change of circumstances such as a simple change of mind”.49 In my view, that is exactly the situation here.

[94]              A further argument against the mother being able to argue that the warrant to enforce should not issue (with the practical effect that the s 105 order is rendered nugatory) is that the circumstances in which the discharge of a return order can be made are prescribed by s 122A CoCA. That section provides:

122A Discharge of order under section 105 for return of child

(1)This section applies where a court makes an order under section 105(2) for the return of a child (the return order).

(2)A party to the proceedings under section 105 in which the return order was made (the return proceedings) may apply to the court for the discharge of the return order.

(3)On an application under subsection (2), the court may discharge the return order if—

45 At [35].

46 At [36].

47 At [40].

48 At [40].

49 At [66].

(a)the application is made not earlier than 1 year after the return order was made, or any appeal in relation to the return order was determined, and the court is satisfied that—

(i)the child is now settled in his or her new environment in New Zealand; and

(ii)having regard to all the circumstances of the case, the discharge of the return order is warranted; or

(b)every other person who was a party to the return proceedings consents.

[95]              Those circumstances do not arise in the present case, and it can not have been intended that a party could circumvent the one year time delay by the device of opposing the issue of a warrant.

[96]              I do not dwell on the various procedural arguments raised in support of the appeal. First, there is nothing in s 119 which prevents an application for a warrant being made contemporaneously with the application for an order under s 105, as happened here. The only constraint is that a warrant cannot issue until an order is made under s 105(2).

[97]              The concern about the repeated applications by the father (or lack of them), fall away when the Court has the ability, on its own initiative, to issue a warrant.50 Throughout the exchanges the Judge had with counsel over enforcement of the order, it was clear she was endeavouring to supervise the return of the children in the least stressful way possible, urging the parents to plan and manage the process. It was only by 3 July 2023, when it was clear that Ms Cresswell would not cooperate with implementing the return order that the Judge decided the warrant was both necessary and in the children’s best interests.

[98]              I also do not accept the criticisms of the applications being dealt with on a without notice basis. The application for a warrant was made on notice, albeit well before the s 105 order was made. The mother was also appraised of the father’s decision to seek a warrant for enforcement from the Family Court and she filed a number of documents and memoranda in opposition to that. In any event, the criteria

50     Care of Children Act, s 119(1).

in Martin v Ryan, are not a straitjacket. In that decision, it was noted that the criteria for justifying ex parte order were not “inflexible or exhaustive”.51 Here, there was an extant s 105 order which had considered the interests of all parties including the children. The mother was refusing to comply with the order. Once the Judge had considered there was no other option was available for enforcement of the order, she issued the warrant. Given this was to enforce a lawful decision of the Court which was beyond appeal, and further delay was considered to not be in the children’s best interests, this was a case which could have appropriately have proceeded without notice, although, I have found that was not the case.

[99]              For all these reasons, I am satisfied the appeal against the warrant has virtually no chance of success. It is an attempt to fundamentally frustrate the effect of the s 105 order when circumstances exist which made it appropriate to issue a warrant to enforce. This is a case where further delay of the implementation of the s 105 order would, in my view, be contrary to the best interests of the children.

Result

[100]Accordingly, I refused to continue the order for a stay.

[101]          It is not apparent to me that costs were sought on the application and, while costs would normally follow the event that is not always the case in proceedings under CoCA. Furthermore, costs were not ordered at any stage in the s 105 proceedings. My preliminary view is that there should be no order for costs but I reserve the issue in case my understanding as to whether costs were sought is incorrect.

Solicitors:

ParryField Lawyers, Christchurch

Copy To:

V A Crawshaw KC, Barrister, Auckland S M Wilson, Barrister, Auckland

51     Martin v Ryan, above n 14, at 226.