F v J

[2013] NZHC 1093

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 COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-000795 [2013] NZHC 1093

UNDER  the Care of Children Act 2004

BETWEEN  F Appellant/Respondent

ANDJ Respondent/Applicant

Hearing:         14 May 2013

Counsel:         L K McWilliam and C F Murphy for Appellant/Respondent P A McKnight and J A Langford for Respondent/Applicant R A Dewar - Counsel for child

Judgment:      14 May 2013

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 4.30 pm on the 14th day of May 2013.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1]      The  principal  issue  I  have  to  resolve  is  encapsulated  in  the  following question:

F V J HC WN CIV-2013-485-000795 [14 May 2013]

Should an order of the Family Court permitting a young child to be taken to live in Saudi Arabia with his mother be stayed pending the hearing of an appeal by the child’s father?

Context

[2]      This issue arises in the context of an urgent application by Mr F to stay the effect of a decision delivered by Judge Boshier in the Wellington Family Court on

7 May 2013 (the judgment).

[3]      In the judgment Judge Boshier made parenting orders in relation to H, who is aged two and a half years old.  He is the son of Mr F and Ms J.  Judge Boshier has ordered that, amongst other things:

(1)      Ms J have the day-to-day care of H and that she undertake that care in

Riyadh, Saudi Arabia, where she and her family normally reside.

(2)      Mr F have contact with H in New Zealand from 15 July 2013 to

12 August 2013 and from 20 December 2013 until 2 January 2014.

(3)There be other contact of a non-physical nature between Mr F and H as agreed to by the parties.  This form of contact will be via electronic medium, such as Skype.

Background

[4]      Mr F and Ms J are New Zealand citizens.  They met in Wellington in 2008 and were married on 3 April 2010.  H was born in Wellington on 27 August 2010. Soon after H was born Mr F and Ms J decided to relocate to Saudi Arabia to live with Ms J’s family, who have lived there for 16 years and manage an international school in Riyadh.  Ms J’s family have also maintained a property in Oriental Bay, in Wellington whilst they have been living in Saudi Arabia.

[5]      Mr  F  and  Ms  J  moved  to  Riyadh  in  January  2011.    They  returned  to

New Zealand for holidays from time to time.  During their return visits Mr F was

able to maintain contact with his other son, R, who is ten years old and lives with his mother in Lower Hutt.

[6]      Mr F and Ms J separated in June 2011.  They resumed their relationship but in May 2012 Mr F unilaterally decided to take H from Saudi Arabia and bring him to New Zealand.   Ms J became aware of Mr F’s intentions to remove H from Saudi Arabia and managed to return to New Zealand at the same time as Mr F and H.

[7]      On her return to New Zealand Ms J issued proceedings in the Wellington Family Court.  An order preventing the removal of H from New Zealand was made on 19 June 2012.  Both parties filed applications for parenting orders.

[8]      Because  the  parties  were  unable  to  agree  on  interim  care  arrangements Judge Ellis heard the parties in the Wellington Family Court on 31 July 2012 and issued an interim order on 17 August 2012, in which Mr F’s contact with H was carefully prescribed.

[9]      As a consequence Mr F has had contact with H every Tuesday and Thursday from 2.30 pm until 5.30 pm and every Friday night until 5.30 pm on Saturdays.  Ms J has continued to be the primary parent for H.   She has attended to his day-to-day care with the assistance of an au pair while living in her parents’ apartment in Oriental Bay.

The judgment

[10]     Ms J’s application for orders granting her the day-to-day care of H and permission to undertake the day-to-day care of H in Saudi Arabia was heard by Judge Boshier on 29 and 30 April 2013 and 7 May 2013.

[11]     Judge Boshier concluded Ms J’s case was “an overwhelmingly strong one”.[1]

[1] LJJ v RAF [2013] NZFC 3664 at [32].

In reaching this conclusion, Judge Boshier made the following observations about

Mr F:[2]

[2] At [26].

(a)      The abduction in June 2012 was, on any view of the matter, unforgiveable and a gross breach of trust.  It puts into stark relief the criticism that [Mr F] puts his own interests above [H’s], because at the material time [H] was part of a highly supportive and well- resourced extended family context in Saudi Arabia.

(b)       [Mr F’s] use of alcohol has extended to abuse, and so persuasive is the evidence that if [Mr F] does not begin to acknowledge it there is a continuing risk.

(c)       Control and jealousy.   It transpired that [Mr F] has had access to [Ms J’s]  email  account  for  some  years  and  has  been  reading correspondence between [Ms J] and her legal advisor. Although it is not wholly clear how [Mr F] initially obtained that access, it seems that initially he requested it so that he could access [Ms J’s] email to see who [Ms J] was writing to in the event that, in his view, [Ms J] was  misconducting herself.    Certainly [Mr J]  did not  know that [Mr F] was accessing her confidential email and only learned of it when told of it by [Mr F’s] former partner, [CH].  It is a particularly bad breach of trust, and shows a side to [Mr F’s] personality which is disturbing.

(d)       Anger management and violence.  The incident in September 2009 when the police were called and [Mr F] arrested for assault on [Ms J] is now distant in time.  I do not propose making findings but [Mr F], by far the senior partner in the relationship at this time, should have acted much differently and should have shown maturity.

(e)       Smoking.  [Mr F] smokes around [H] and the child’s clothes smell of smoke. [Mr F] denied that this was so and claimed that it was smoke from a fire.  [H’s] nanny, [B], was called to give evidence and was clear that she could smell smoke heavily in [H’s] clothing.  I found her a credible witness.  [Mr F’s] attempts at an explanation, namely by suggesting that smoke was from an indoor fire in March of this year, does him little credit.   I found him lacking in realism and common sense.

(f)       Safety.  A concern of [Mr F] is his claim that Saudi Arabia is not safe.  But in other proceedings involving [Ms CH], it suited him to say in an affidavit the opposite.  I was left with the impression that I needed  to  be  careful  of  what  I  could  and  could  not  believe  of [Mr F’s] evidence.

(g)       [Mr F’s boundaries].  This issue is of indirect relevance to welfare, but inasmuch as he grows up [H] should have the best role model possible,  [Mr  F’s]  actions  have  been  concerning.    [Mr  F]  was

married to [Ms J] at the time when [AS] was present with [Mr F] and said that he had approached her sexually.  I felt she was a credible witness, and [Mr F’s] attempts to brush this off as uneventful were, to me, significant. Another incident which initially assumed no great importance was [Ms J’s] claim that although heavily in conflict late last year [Mr F] had suggested to [Ms J] that it might suit them both to have an ongoing casual sexual relationship.  At first [Mr F] hotly denied any such statement he had made, but when confronted with a recording, he conceded that he probably had made that suggestion. His judgement leaves a lot to be desired.

[12]     Judge Boshier concluded that the intense animosity that exists between Mr F and  Ms  J  was  creating  an  environment  that  H  needed  to  be  distanced  from. Judge Boshier reached these conclusions partially on the basis of the evidence of Dr Orr,  a  clinical  psychologist,  who  also  was  concerned  about  the  distress  and anxiety suffered by H because of the high level of conflict between his parents.

[13]     Mr F was not represented in the Family Court because his grant of legal aid had been discontinued.  He has, however, now been able to instruct Ms McWilliam to represent him.   Ms McWilliam appeared before me today and presented very cogent and helpful submissions on behalf of Mr F.

Application for leave to appeal

[14]     Mr  F  requires  leave  to  appeal  the  part  of  Judge  Boshier’s  decision  that permits Ms J to relocate H from New Zealand to Saudi Arabia.

[15]     In my view, it is not necessary for me to determine that application today. Suffice to  say the authorities  strongly support  leave being  granted to  appeal  in circumstances such as those presented in the present case.[3]

[3] W v W [1984] 1 NZLR 366 (CA) and ACCS v AVMB [2006] NZFLR 986 (HC).

[16]     Had  it  been  necessary  for  me  to  do  so,  I  would  have  granted  Mr  F’s application for leave to appeal because the decision by Ms J to relocate with H to Saudi  Arabia  is  a  significant  decision  that  ought  as  a  matter  of  principle  be susceptible to appeal to the High Court.

[17]     Ms McWilliam summarised the issues that will be traversed by the appeal. She explained the appeal will raise the following questions:

(1)Did Judge Boshier give adequate considerations to the consequences of relocation as between H and Mr F?

(2)       Did Judge Boshier elevate the interests of Ms J above those of H’s?

(3)Did Judge Boshier give adequate consideration to the risk of H not being returned to New Zealand?

(4)       Did Judge Boshier give sufficient weight to the concern of Dr Orr that

H should not live in Saudi Arabia long-term?

(5)Did Judge Boshier give adequate consideration to the consequences of conflict between the parties, potentially resulting in Ms J not being willing or able to foster Mr F’s relationship with H?

(6)Did Mr F have the opportunity to present his case fairly and/or was the decision predetermined?   Was evidence admitted at the hearing that was unfairly obtained and prejudicial to Mr F?  Should counsel for Ms H (Mr F’s previous partner) have been permitted to sit in on the oral judgment issued on 7 May 2013?

(7)Were  factual  errors  made  by  Judge  Boshier  which  affected  the outcome of the judgment?

(8)Did Judge Boshier give adequate consideration to the principles set out in s 5 of the Care of Children Act 2004?

[18]     Section 143(4) of the Care of Children Act 2004 (the Act) and r 20.10(2)(a) of the High Court Rules authorise the issuing of a stay of a judgment where an appeal is to be pursued.   In determining whether to issue a stay of judgment my focus is upon:

(1)       the welfare and best interests of H;

(2)       whether or not Mr F’s appeal would be rendered nugatory if a stay is

not granted;

(3)       whether the judgment under appeal alters the “status quo”;

(4)whether the prospects of Mr F’s appeal succeeding are diminished because  of  the  credibility  and  factual  findings  made  by  Judge Boshier;

(5)       whether the appeal is bona fide;

(6)factors such as the length of time to the hearing of the appeal and the circumstances of the parties.[4]

H’s welfare and best interests

[4] See WAH v WTW [2010] NZCA 344.

[19]     Ms Dewar, counsel appointed to represent H in the Family Court, kindly appeared  before  me  this  morning.     She  summarised  the  approach  taken  by Judge Boshier when she said that Judge Boshier was very concerned  about H’s considerable anxiety and distress generated by the conflict between his parents. Ms Dewar explained that Judge Boshier proceeded on the basis that returning H to Saudi Arabia with Ms J would “create the distance needed to enable the conflict that exists between Mr F and Ms J to dissipate”.

[20]     Ms Dewar endorsed the approach taken by Judge Boshier and advised that on balance she recommends that no stay be granted.

[21]     Having traversed carefully the evidence relied upon by Judge Boshier, and in particular the report of Dr Orr, I am satisfied that it is in H’s overall best interests to be relocated back to Saudi Arabia, pending the hearing of Mr F’s appeal, where he will enjoy the stability of his mother’s family’s supporting environment.

Will an appeal be rendered nugatory if H is permitted to relocate to Saudi

Arabia?

[22]     Mr F is particularly concerned that if H is relocated with Ms J to Saudi Arabia he will have little opportunity to maintain his contact with H.  He believes there is a real risk that Ms J will not return H to New Zealand.  This aspect of Mr F’s case is enhanced by the fact that Saudi Arabia is not a signatory to the Hague Convention.

[23]     However, Ms J has consistently assured the Family Court that she will return to New Zealand with H whenever the Court requires her to return to New Zealand. That assurance was repeated in an affidavit Ms J swore in the proceeding that I have heard.

[24]     Judge Boshier had the opportunity of carefully assessing Ms J’s credibility and integrity.  He concluded that she can be trusted to return to New Zealand with H, to give effect to his contact orders.

[25]     I am in no position to question the assessment which Judge Boshier has made of Ms J.  However, as the hearing of an appeal raises different issues to complying with contract orders, I believe it appropriate to explore options to enhance the prospects of Ms J returning with H to New Zealand if a stay of Judge Boshier’s orders is not appropriate.

Does the Family Court judgment change the status quo?

[26]     Where a decision that is to be appealed from significantly alters the “status quo” the High Court will be more receptive to issuing a stay.

[27]     In the present case, the contact arrangements have been put in place after Mr F unilaterally removed H from Riyadh.  Ms J was alerted to this dramatic turn of events and managed to return to Wellington at the same time as Mr F and H.  The contact arrangements which have occurred since August 2012 are the result of a “constructed status quo”.   They are arrangements that have been created out of necessity once Mr F took the extraordinary step of significantly changing the true status quo, namely the arrangements which H, Mr F, and Ms J had in Saudi Arabia.

[28]     I appreciate that since August 2012 Mr F has had regular and contact with H and that the effect of Judge Boshier’s decision will be to significantly change those arrangements.  However, Judge Boshier was satisfied that the case for Ms J was an “overwhelmingly strong one” and that she should continue to be the primary caregiver.  In these circumstances I am not satisfied that the so-called status quo is as helpful to Mr F as it might be in other cases.

Factual findings in the Family Court

[29]     Judge Boshier’s decision was substantially founded upon his findings of fact and in particular, his careful assessment of the credibility of Mr F and Ms J.   On appeal, the High Court will examine all evidence and reach its own view of the merits of the parties’ positions.  However, the fact that Judge Boshier’s judgement was heavily founded upon findings of credibility increases the challenges which Mr F will face when pursuing his appeal.

Bona fide of the appeal

[30]     Mr McKnight, counsel for Ms J, quite properly submitted that whilst Ms J may have some reservations about the appropriateness of Mr F’s appeal, there can be no serious question about the bona fide nature of Mr F’s appeal.  It is very apparent

that Mr F wishes to do all that he reasonably can to enhance the level of contact that he has with H during these important years of H’s life.

Other circumstances

[31]     It now appears that a two day fixture is required and that time is available on

5 and 6 August 2013.  That hearing date is highly appropriate because it coincides with when H and Ms J are to be back in New Zealand.   It is a date that suits all counsel.

[32]     The fact that the High Court can accommodate a two day appeal within a relatively short period of time is a factor that favours the granting of a stay.

Overall assessment

[33]     I have carefully weighed all of the factors that have been urged upon me by counsel.  I have reached the conclusion that the factors which favour the orders of Judge Boshier remaining in force significantly outweigh the factors which favour the granting of a stay.  In particular, like Ms Dewar, I am in no doubt that it is in H’s welfare and best interests for him to enjoy the security and comparative tranquillity of the environment that exists in Riyadh with Ms J and her family, pending the hearing of Mr F’s appeal.

Orders

[34]     The application for orders preventing H from being relocated to Saudi Arabia

with Ms J, pending the hearing of Mr F’s appeal is dismissed.

[35]     I make the following orders under r 20.10(2)(c) and (3)(b) of the High Court

Rules:

(1)Ms J is to pay into the High Court the sum of $10,000 to be held as security in the event that she fails to return to New Zealand with H for the hearing of Mr F’s appeal.

(2)If Ms J fails to return to New Zealand with H for the hearing of the appeal then the $10,000 security is to be released to Mr F’s lawyers so that he may use that money to assist with him travelling to Saudi Arabia (or other convenient country) to enable him to have contact with H.

(3)       The appeal will commence in the Wellington High Court on 5 August

2013.

(4)Mr F will have contact with H before H leaves New Zealand.  That contact will commence at 10.00 am on Thursday 16 May 2013 until

5.30 pm on Friday 17 May 2013.

(5)Mr F shall have Skype contact with H once a week at a time to be arranged between the parties.

[36]     If Ms Dewar is able to accept assignment, I will confirm her reappointment as counsel for H for the purposes of the appeal.

[37]     The orders made by the Family Court on 19 June 2012 preventing H from being removed from New Zealand are set aside.[5]

[5] There appears to have been an inadvertent omission from Judge Boshier’s decision of 7 May

2013 when he appears to have overlooked setting aside the Family Court order of 19 June 2012

[38]     Costs are reserved.

D B Collins J

Solicitors:

McWilliam Rennie, Wellington for Appellant/Respondent

Langford Law, Wellington for Respondent/Applicant

Rachael Dewar Law, Wellington for Child