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…

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] NZHC 1970
Case: [2023] NZHC 1970
Decision Date: 26 July 2023

CaseChat Overview and Summary

Cresswell v Roberts is an appeal against a decision of the Family Court to issue a warrant to enforce an order for the return of two children to France. The appeal was accompanied by an interlocutory application for a stay of execution of the warrant. The Court of Appeal had previously determined that the children should return to France, and the Supreme Court had declined leave to appeal that decision. The mother opposed the warrant, arguing it would cause significant harm to the children by separating them from their primary caregiver, their mother, as she would not be returning to France. The mother also argued the decision under appeal significantly changed the status quo, and the appeal would be rendered nugatory if the stay was refused. The father, in turn, argued the warrant was necessary to enforce the final order of the Court of Appeal.

Dunningham J found that this Court did not have jurisdiction to grant the stay because the appeal was not properly filed in this Court. The orders made in the Family Court’s 3 July minute (including for the issue of a warrant), were interlocutory in nature. Consequently, s 143 of CoCA applied. That section relevantly provides that appeals against interlocutory or interim orders can only be made with the leave of the Family Court. Leave to appeal had not been sought or granted. Dunningham J also found that the appeal had virtually no chance of success. The law is that there must be truly exceptional circumstances which would render the issue of a warrant “pointless” before a Court would decline to issue a warrant. In this case, the mother’s decision not to return to France could not be argued to meet the high threshold articulated in Butler v Craig. The mother’s fluctuating views on whether she would return to France and the reasons for that were not new and did not constitute a fundamental change in circumstances. Further, the circumstances in which the discharge of a return order can be made are prescribed by s 122A CoCA. That section provides that a return order may be discharged if the child is now settled in their new environment in New Zealand and the court is satisfied the discharge is warranted. Those circumstances do not arise in the present case. Further delay of the implementation of the s 105 order would, in Dunningham J's view, be contrary to the best interests of the children.

Orders