CRP v LPD

[2012] NZHC 1224

NOTE:  PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION PLEASE SEE WWW2.JUSTICE.GOVT.NZ/FAMILY/LEGISLATION/RESTRICTIONS.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV 2012-443-165 [2012] NZHC 1224

BETWEEN  CRP Appellant

AND  LPD

First Respondent

AND  JBB

Second Respondent

Hearing:         1 June 2012

Counsel:         J Logie for Appellant

R Wilson for Respondents
H L C Raumatu, Lawyer for Children
S Jefferson, Counsel to Assist the Court

Judgment:      1 June 2012

(ORAL) JUDGMENT (NO. 2) OF HEATH J

Solicitors:

Reeves Middleton Young, New Plymouth
Counsel:
John Logie, Palmerston North
R Wilson, New Plymouth

S Jefferson, Auckland

CRP V LPD HC NWP CIV 2012-443-165 [1 June 2012]

Introduction

[1]      Ms P and Mr B have two children.   One, a daughter is aged 11 years, the other, their son, aged 10 years.  Ms P now lives in Australia with her husband.  Mr B resides in New Zealand.  Mr B’s mother, Ms D, had day-to-day care of the children for some time and has also been appointed as an additional guardian of the children in education matters by the Family Court.

[2]      The children went to Australia to live with their mother.  However, when they returned to New Zealand, in September 2011, certain disclosures were made that caused Ms D to decline to allow the children to return to New Zealand after a contact visit.  Ms P applied to the Family Court for an order for return.  The application was made under s 105 of the Care of Children Act 2004 (the Act), one of a set of provisions that give effect in New Zealand to the Hague Convention on the Civil Aspects of International Child Abduction.

[3]      The application came before Judge Courtney.   Following a hearing on  5

January 2012 and an interim judgment of 23 January 2012,[1]  the application was formally dismissed by Judge Courtney on 7 March 2012.[2]    The Judge found that affirmative defences had been established; in particular, that there was a “grave risk” that the children’s return would expose them to physical or psychological harm,[3] or would place them in an “intolerable situation”.[4]    In addition, at the time of the hearing in the Family Court, the children had expressed a wish not to return to Australia.  The Judge found they were of a sufficient age and degree of maturity for their views to be given weight.[5]

[1] CRP v LPD [2012] NZFC 19

[2] CRP v LPD [2012] NZFC 1513.

[3] Care of Children Act 2004, s 106(1)(c)(i).

[4] Ibid, s 106(1)(c)(ii).

[5] Ibid, s 106(1)(d).

[4]      Ms P appeals against Judge Courtney’s decision.

[5]      The appeal was scheduled for hearing on 25 May 2012.  In the week leading up to the hearing, there were a series of developments.  While it is unnecessary to go into detail, it became clear that there was a suggestion that the wishes of the children had changed and that they now wished to return to live Australia with their mother. The circumstances in which that change of wishes emerged required some exploration, to ensure that no inappropriate pressure had been put on the children.

[6]      As a result of discussions that took place on the morning of 25 May 2012, I appointed Mr Simon Jefferson of Auckland, Barrister, as Counsel to Assist the Court. Mr Jefferson was to facilitate a meeting among parties and others directly affected by the appeal.  That meeting was held last Sunday.  As a result of that and subsequent discussions, the parties have reached agreement as to the outcome of the appeal.

[7]      Ms D and Mr B are now satisfied that any risks to the children, if they were to return to Australia, can be managed through parenting orders to be made in the Family Court later today and subsequently registered in the Family Court of Australia, in which there are extant proceedings in Parramatta.  It is now accepted that the children’s wishes have genuinely changed.

[8]      The parties agree that this Court can allow the appeal by consent based on the changed circumstances.  There will be conditions imposed to parenting orders that the parties will seek from the Family Court later today.   It is important to note, however, undertakings that have been given to the Court that no “retribution” of any type will be visited on the children for disclosures made while they have been in New Zealand.  In addition, there are conditions which will require counselling to be undertaken in Australia.

[9]      Save for mention of those particular items, I indicate that the appeal is to be allowed  on  the  assumption  that  orders  will  be  made  by  the  Family  Court,  as suggested in paragraph 6 of counsel’s joint memorandum of 31 May 2012.

[10]     In those circumstances, the appeal is allowed.  The application for return of the children is remitted to the Family Court with a direction that an order for return should be made under s 105 of the Act.   Such order is anticipated to be made on terms that reflect the parties’ agreement, as recorded in the joint memorandum.

[11]     As among the parties, no order as to costs is sought.  None is made.

[12]     The reasonable costs and disbursements incurred by Mr Raumati, as Lawyer for the Children, and Mr Jefferson, as Counsel to Assist the Court, shall be paid out of public moneys appropriated by Parliament for the purpose.   Mr Jefferson’s disbursements shall include reasonable travel and accommodation expenses.

[13]     I congratulate counsel, and more particularly the parties and those affected by the outcome of the appeal, for the way in which they have engaged in sensible discussion to advance the welfare of the children.

[14]     I am satisfied from what I heard last week and what I have been told in memoranda during the course of this week, that the interests of the children have been paramount in everyone’s eyes.  I congratulate them on reaching an appropriate

solution.  In particular, I thank Mr Jefferson for his assistance over the past week.

P R Heath J