Fairfax v Ireton

[2009] NZCA 100

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NOTE: ANY PUBLICATION OF A REPORT OF THESE PROCEEDINGS MUST COMPLY WITH S 139 OF THE CARE OF CHILDREN ACT 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA777/2008 [2009] NZCA 100

BETWEEN  C Appellant

ANDH Respondent

Hearing:         11 February 2009

Court:            Chambers, Robertson and Baragwanath JJ Counsel:    M M Casey and E B Parsons for Appellant

G K W Page SC for Respondent

Judgment:      24 March 2009         at 5 pm

JUDGMENT OF THE COURT

A        The appeal is allowed.

BIn place of the declarations made in the High Court, we substitute the following declarations with respect to New Zealand domestic law:

(a)Whether the father is a guardian of the child under the Care of Children Act 2004 turns on whether  or  not  the  father  and  the mother were living together as de facto partners at the time of the child’s birth;

(b)    The father, jointly with the mother, had, in relation to the child, immediately before the child’s removal from New Zealand to Australia, rights relating to the care of the person of the child,

including the role of providing day-to-day care for the child, and,

C V H CA CA777/2008  24 March 2009

in particular, the right, jointly with the mother, to determine the child’s place of residence.

C        Costs are reserved.

D        This case may be cited as Fairfax v Ireton.

REASONS

Chambers and Robertson JJ  [1] Baragwanath J  [88]

CHAMBERS AND ROBERTSON JJ

(Given by Chambers J)

Table of Contents

Para No Child abducted from New Zealand to Australia  [1] Issues on the appeal  [8] Was it appropriate in this case for the Australian Central Authority

to seek from New Zealand an art 15 declaration?  [12]

The art 3 request  [14]
The three bullet questions  [32]

What were the father’s rights under New Zealand domestic law?

Introduction  [44]

A parenting plan  [46] An agreement “having legal effect”?  [51] The right to determine the child’s place of residence  [61] Conclusion  [67] The High Court decision  [70]

Mr Page’s position  [73]
Result  [78]

[1]      Sam was born in New Zealand in September 1996.   His father is C, the appellant on this appeal; his mother is H, the respondent.   The mother and father never married.   There is conflicting evidence as to whether the mother and father were cohabiting at the time of Sam’s birth.  It is clear, however, that they did cohabit from approximately two months after Sam’s birth until they separated in late 1999 or early 2000.

[2]      Relations  between  the  mother  and  the  father  after  their  separation  were difficult.   In 2007, the mother and father had sessions with a court-appointed counsellor following a referral under s 9 of the Family Proceedings Act 1980.  The counselling resulted in a parenting plan.  Under it, the father was to have Sam with him two days one week and four days the next.  The mother was to look after Sam the rest of the time.  Neither party ever sought to have that arrangement embodied in a formal court order.

[3]      In February 2008, the mother and Sam flew to Brisbane.  They continue to live in Queensland.  The father has had no contact with his son since.

[4]      The  father  invoked  the  Hague  Convention  on  the  Civil  Aspects  of International Child Abduction, to which New Zealand and Australia are signatories. The Convention has been incorporated into New Zealand law, first by the Guardianship Amendment Act 1991 and now by Subpart 4 of Part 2 of the Care of Children  Act  2004  (COCA).    Under  the  Convention,  each  contracting  state  is required to designate a Central Authority to discharge certain duties imposed by the Convention.   In New Zealand’s case, the Central Authority is the Secretary for Justice.    The New  Zealand  Central  Authority made  a  request  to  the  Australian Central Authority for Sam’s return to New Zealand.   Pursuant to that request, the Australian Central Authority has commenced proceedings in the Family Court of Australia at Brisbane for an order that Sam be returned here.   That application remains undetermined, partly because of another step taken by the Australian Central Authority.  In June last year, it requested the New Zealand Central Authority under art 15 of the Hague Convention to obtain a decision from the New Zealand courts as

to whether we consider Sam’s removal to have been wrongful within the meaning of art 3 of the Convention.

[5]      The New Zealand Central Authority actioned that request.  It applied to the New Zealand Family Court for an order declaring Sam’s removal wrongful.  It made the application under s 111 of COCA, that being the section implementing art 15 so far as New Zealand is concerned.  The Family Court removed the proceeding to the High Court.

[6]      When  the  matter  was  dealt  with  in  the  High  Court,  it  quickly  became apparent that a number of key facts were in dispute between the mother and the father.   A court giving an art 15 advisory opinion is in no position to determine disputed questions of fact.  In the end, the High Court delivered a judgment (HC AK CIV 2008-404-4279 24 November 2008) expressing its opinion in the alternative:

(a)     If the father and the mother were living together as de facto partners at the time of Sam’s birth, then the father would be a guardian of the child, with custody rights under New Zealand law within the meaning of art 5(a) of the Convention.   In that case, Sam’s removal by the mother would be wrongful.

(b)If the father and mother were not living together as de facto partners at the time of Sam’s birth, then the mother would be the sole guardian of the child.  In that situation, the father would not have rights of custody under New Zealand law and Sam’s removal would not be wrongful within the meaning of art 3.

[7]      The father has appealed.  He does not oppose finding (a), which is favourable to his cause.  But he says the High Court was wrong in holding he did not have rights of custody in the event that the Australian Family Court finds that he and the mother were not living together as de facto partners at the time of Sam’s birth.   He says custody rights do not depend on his being Sam’s guardian under New Zealand law.

[8]      We intend beginning with a comment on whether it was appropriate in this case for the Australian Central Authority to  seek  from  New  Zealand  an  art  15 declaration.

[9]      Then we shall turn to whether, in the event the father is found not to be Sam’s guardian, the High Court was right to hold that the father did not have custody rights. Ms  Casey  and  Ms Parsons,  who  appeared  for  the  father,  submitted  to  us  that Priestley and Cooper JJ, who sat on this matter at first instance as a Full Court, erred in holding the father had no custody rights.  They submitted that, even if the father was not a guardian, he acquired custody rights either under a parenting plan the mother and father had agreed or, in any event, by virtue of the fact he had been caring for Sam in a parental role and, but for the removal, would have been able to apply to court to perfect the arrangement.   These inchoate rights, as Ms Parsons called them, were sufficient to constitute custody rights under our domestic law.

[10]     The High Court held that neither basis gave the father custody rights.  Was it correct?

[11]     Finally, we comment upon the position of the mother’s counsel, Mr Page SC. Mr Page was originally admitted as a barrister and solicitor in New Zealand.  But he left these shores many years ago to practise in Australia.  Queensland is his home base, and indeed in that state he has been appointed to the rank of Senior Counsel. Mr Page has a practising certificate in Queensland, which permits him to practise in all the Australian states and territories.  But he does not have a practising certificate in this country.   Does he need one?   We agreed to hear his submissions on the mother’s behalf and were grateful for the assistance he provided.  Were we entitled to hear him?

Was it appropriate in this case for the Australian Central Authority to seek from New Zealand an art 15 declaration?

[12]    On 19 June last year, Andrew Newman-Martin, a legal officer with the International   Family   Law   Section   of   the   Attorney-General’s   Department   in Canberra, wrote to the New Zealand Secretary for Justice in these terms:

I request under Article 15 of the Convention that you apply to the courts of New Zealand for a determination that the removal of [Sam] to Australia was wrongful within the meaning of Article 3 of the Convention.

I request in particular that the determination address the following issues:

•whether [the father] had custody rights under New Zealand law within the meaning of the Convention;

•      whether [the father] is a guardian of [Sam] under the Care of Children

Act 2004 (NZ); and

•whether [the mother] was living with [the father] as a de facto partner at the time [Sam] was born, in accordance with s 17(3)(b) of the Care of Children Act 2004 (NZ).

[13]     For convenience we refer to the first request (in the first paragraph) as “the art 3 request”.  We refer to the three bullet-pointed questions in the second paragraph as the first bullet question, the second bullet question, and the third bullet question respectively.

The art 3 request

[14]     Article 15 of the Convention reads as follows:

The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State.  The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.

[15]     Article 15 has been implemented by s 111 of COCA:

A Court that has jurisdiction under this subpart may, if requested by the Central Authority of another Contracting State, make an order declaring that the removal of a child from New Zealand to that Contracting State was wrongful within the meaning of Article 3 of the Convention.

[16]     At first blush, art 15 (and its New Zealand “translation”, s 111) would seem to require the requested court (as we shall call the court to which an art 15 request is made) to rule on the very issue which the foreign court is grappling with, namely whether the child’s removal was wrongful within the meaning of art 3 of the Convention.   (For convenience we refer to that foreign court as “the application court”, being the court which is dealing with an application under the Hague Convention to return a child.)  But in our view that is not the purpose of art 15.  It is the High Court's failure to appreciate the function of art 15 that has, in our respectful view, led it into error.

[17]     Put briefly, the function of art 15 is to enable an application court to obtain from a court of the state from which the child has been removed an opinion as to the domestic law of that state.  The requested court should go no further than that as the question whether the child’s removal was wrongful for Hague Convention purposes is determined not by the law of the state from which the child has been removed but rather  by  the  application  court's  perception  of  the  autonomous  law  of  the Convention.  The requested court has no expertise in the Convention jurisprudence of the application court and should not express views about that.  It follows that the art 3 request in this case was wrongly made and should not be answered.  Whether Sam’s removal to Australia was wrongful within the meaning of art 3 is exclusively a matter for the Australian courts, to be determined in accordance with Australian jurisprudence on the meaning and application of the Convention.  The three bullet questions, on the other hand, are all proper, in that they seek from the New Zealand courts a declaration as to New Zealand domestic law.  That we are qualified to give; the Australian courts may or may not find our views on that helpful.  (Whether it was sensible to ask these questions is another matter, which we shall deal with in the next section of these reasons.)

[18]     This approach to art 15 requests has been the subject of detailed analysis in the English Court of Appeal. First, we note what Lord Donaldson of Lymington MR said in In re J (a Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 568 (CA):

In my judgment, article 15 and, indeed, article 14 were intended to assist a court which is asked to order the return of a child to ascertain the law of the other  contracting state,  in  so  far  as  that  law is  relevant  to  whether  the removal  or  retention  was  wrongful  within  the  meaning  of  article  3.    It cannot, as I see it, have been the intention that the courts of the other contracting state should be asked to determine the issue of the applicability of article 3 in so far as it turns on the meaning of the Convention itself, because that is something which the courts of both countries are equally able to determine.   Indeed, they would be expected to arrive at similar determinations.  If, unhappily, this did not occur, the court which has been asked to order the return of the child would be bound to apply its own view of the Convention, particularly where, as here, the Convention only takes effect by virtue of a domestic Act of Parliament.  [Emphasis added.]

[19]     The other two members of the Court of Appeal agreed with Lord Donaldson. The point he was making is most important, as it demonstrates the correct approach to an art 15 request.   It also demonstrates the limits of such a request.   Ward LJ returned  to  this  point  in  two  later  Court  of  Appeal  cases,  Re  V-B  (Abduction: Custody Rights) [1999] 2 FLR 192 and Re P (Abduction Consent) [2004] 2 FLR

1057.   In the latter case, His Lordship emphasised that the court’s role on an application under the Hague Convention “is to establish the rights of the parents under the law of that State and then to consider whether those rights are rights of custody for Hague Convention purposes”: at [60] [emphasis added].  It is only on the first of those questions that a foreign court may be able to provide assistance to the application court.

[20]     The correct approach is usefully set out by Dyson LJ in Hunter v Murrow [2005] 2 FLR 1119 (CA). What His Lordship said is so important that we repeat it in full:

45I agree that this appeal should be dismissed.  I add a few observations of my own in particular on the question of when it is appropriate to request   a   determination   pursuant   to   article   15   of   the   Hague Convention, and the significance of such a determination.

46There is no longer any doubt as to the approach that a court should adopt when determining whether the removal or retention of a child is wrongful within the meaning of article 3.  As Ward LJ said in Re V-B (Abduction: Custody Rights) [1999] 2 FLR 192 at page 196B, the first

task is to establish what rights, if any, the applicant had under the law of the state in which the child was habitually resident immediately before his or her removal or retention.   I shall refer to this as “the domestic law question”.   This question is determined in accordance with the domestic law of that state.  It involves deciding what rights are recognised by that law, not how those rights are characterised.  As Lord Donaldson of Lymington MR said in C v C (Abduction: Rights of Custody) [1989] 1 WLR 654, page 663F: “… it matters not in the least how those rights are described in Australian law. What matters is whether those rights fall within the Convention definition of “rights of custody””. To similar effect, Millett LJ said in Re F (Child: Abduction: Risk if Returned) [1995] 2 FLR 31 at page 40F that the Colorado lawyers should not have been asked “whether the appellant’s conduct in removing the child from Colorado was wrongful by the law of Colorado, whether at the time of the child’s removal the respondent had what a Colorado court would describe as “rights of custody” or whether the child’s removal would be regarded by a Colorado court as being in breach of those rights.” The only question which the Colorado lawyers should have been asked was what rights, if any, were possessed by the applicant in relation to the child at the time of his removal from Colorado.

47The  next  question  is  whether  those  rights  are  properly  to  be characterised as “rights of custody” within the meaning of articles 3 and 5(b) of the Convention.  I shall refer to this as “the Convention question”.  This is a matter of international law and depends on the application of the autonomous meaning of the phrase “rights of custody”.  Where, as in the present case, an application is made in the courts of England and Wales, the autonomous meaning is determined in accordance with English law as the law of the court whose jurisdiction has been invoked under the Convention.   But as Lord Browne-Wilkinson said in Re H (Abduction: Acquiescence) [1998] AC 72 at page 87F, the Convention cannot be construed differently in different jurisdictions: it must have the same meaning and effect under the laws of all Contracting States. In R v Secretary of State for the Home Department ex p Adan [2001] 2 AC 477 at page 517 when referring to the meaning of the Geneva Convention relating to the Status of Refugees, Lord Steyn said

“In practice it is left to national courts, faced with material disagreement on an issue of interpretation, to resolve it.  But in so doing it must search, untrammelled by notions of its national legal culture, of the true autonomous and international meaning of the treaty.  And there can only be one true meaning.”

48This is the background against which the utility of a request for a determination under article 15 should be considered.  An assertion that the removal of a child is wrongful within the meaning of article 3 entails three propositions, viz: (i) the applicant enjoys certain rights in relation to the child; (ii) these rights are “rights of custody” within the meaning of the Convention; so that (iii) the removal of the child is in breach of those rights and therefore wrongful.

[21] His Lordship then went on to consider the utility of art 15 requests relating to what he had called “the domestic law question”. We shall return to His Lordship’s views on that when considering the three bullet questions, which are “domestic law questions”. Finally, His Lordship considered requests on what he termed “the Convention question”. He concluded that “no useful purpose [was] served” in asking for a determination on the Convention question, as that is a matter for the application court applying its law: at [56].

[22]     Thorpe LJ expressly agreed with Dyson LJ’s analysis (at [41]), as did the third member of the court, Lloyd LJ.  Thorpe LJ made another observation which is key to understanding how Hague Convention  cases  work  and  why it  would  be improper for us to answer the Australian Central Authority’s art 3 request.  He said at [29]:

[I]t is fairly said that in determining whether or not the father exercised rights of custody immediately prior to Xavier’s removal [from New Zealand to England] this court applies not English law but the English perception of the autonomous law of the Convention.   That proposition can be easily demonstrated by reference to the speech of Lord Browne-Wilkinson in the case of Re H (Abduction: Acquiescence) [1998] AC 86 where at 88A-C he reviewed relevant reported cases in other jurisdictions.

[23]     This   well-established   English   authority,   developed   by   some   of   that jurisdiction’s leading Hague Convention judges, was followed by the English Court of Appeal in D (A Child) [2006] EWCA Civ 830. But the House of Lords, on an appeal from that decision, has thrown this line of authority into doubt: In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619.

[24] This was not a case where the English courts were exercising an art 15 function; rather, the English courts were being asked to return a Romanian child who had been brought to England. Baroness Hale of Richmond, with whom the other Law Lords agreed, disagreed with earlier Court of Appeal authority in so far as it suggested that art 15 requests should be restricted to what Dyson LJ had called “the domestic law question”. She considered it was appropriate to ask the requested court its views on “the Convention question” as well. She agreed that art 15 “could with advantage [have drawn] a clearer distinction between the two issues”: at [45].

[25] Her Ladyship regarded the requested court’s opinion on the domestic law question as “conclusive”. That is to say, when an English court is the application court, it must accept the requested court’s domestic law opinion, “save in exceptional circumstances, for example where the ruling has been obtained by fraud or in breach of the rules of natural justice”: at [43]. In adopting that view, Her Ladyship departed from earlier English authority (In re J (a Minor) (Abduction: Custody Rights) [1990]

2 AC 562 at 578 (HL) and Hunter v Murrow at [27]-[28]) and from the view held by academic writers (see, eg, Lowe, Everall and Nichols The International Movement of Children (2004) at [15.9] and Beaumont and McEleavy The Hague Convention on International  Child  Abduction  (1999)  at  65).     Her  Ladyship’s  view  is  also inconsistent with this court’s view as expressed in Dellabarca v Christie [1999] 2

NZLR 548 at 550.

[26]     Her Ladyship was less clear as to the status of the requested court’s opinion on the Convention question.  The test she proposed for English courts so far as the requested court’s opinion on the Convention question is concerned was expressed in these terms (at [44]):

The foreign court is much better placed than the English to understand the true meaning and effect of its own laws in Convention terms.   Only if its characterisation of the parent’s rights is clearly out of line with the international understanding of the Convention’s terms, as may well have been the case in Hunter v Murrow, should the court in the [application] state decline to follow it.

[27]     Lord Brown of Eaton-Under-Heywood, in his concurring speech, put the matter even higher:

[81]      In circumstances like these it seems to me almost inconceivable that the court requesting the  article  15  determination would  then  not  simply accept it.  Certainly there would need to be some compelling reason to reject it such as a flagrant breach of the rules of natural justice in the foreign judicial process or a manifest misdirection as to the autonomous meaning of the Hague Convention term ‘rights of custody’.

[28]     With due respect to the House of Lords, we much prefer the jurisprudence of the earlier Court of Appeal authority.   In our view, there is a leap of logic in the House of Lords’ view.   The essential point is that no court ever analyses the wrongfulness of a child’s removal from its jurisdiction in Convention terms.   For

instance, suppose in the present case the mother had, prior to leaving New Zealand with Sam, sought a declaration as to her right to take him.  The New Zealand Family Court would have analysed that question solely by reference to New  Zealand’s domestic law and the mother’s and father’s rights under it.  The court would not have been concerned with the Hague Convention or Subpart 4 of Part 2 of COCA at all. The only time New Zealand courts consider whether removals of children are wrongful under the Convention is when a child has been brought to New Zealand and application is made to us for the child’s return.   In those circumstances, the New Zealand court will consider the applicant’s rights under the domestic law of the jurisdiction from which the child has come, and then will apply our perception of the autonomous law of the Convention.  If the New Zealand court has made an art 15 request of a foreign court, it will be very interested in the foreign court’s views on any domestic law questions.   But that particular foreign court’s view on the Convention question will be no more influential than the views of any other foreign court as to what is “the autonomous law of the Convention”.

[29]     Indeed, the House of Lords’ approach turns the Convention on its head.  Far from discouraging art 15 requests, as Their Lordships were keen to do (see below at [38]), their view will encourage them.  Parents’ lawyers in Hague Convention cases will keenly study the respective jurisprudence of the application state and the state from which the child has been removed with a view to finding out which state’s perception of the autonomous law of the Convention best suits their client’s interests. If it is the law of the country from which the child has been removed, then the parent who considers that state’s jurisprudence to be more favourable to him or her can be expected to pressure one or other of the relevant central authorities to request an art

15 ruling from the courts of the country from which the child has been removed. The opinion of the requested court will then effectively become binding on the application court, save in exceptional circumstances.  By this means, resolution of an essential question on a Convention application is effectively removed from the application court to the requested court.  In our respectful view, that is contrary to the Convention.

[30]     For these reasons, so far as New Zealand is concerned, we are of the view that New Zealand courts should continue to follow the earlier English Court of

Appeal  jurisprudence  and  should,  when  faced  with  an  art  15  request,  provide answers only to domestic law questions.  In the present case, therefore, we are not going to answer whether Sam’s removal to Australia was wrongful with the meaning of art 3.  That turns on the meaning of the Convention, and that is solely a question for the Australian courts, where they will apply “the [Australian] perception of the autonomous law of the Convention”.   It is particularly inappropriate as well when there are so many disputed facts which bear on the topic of whether the removal was wrongful.  We return to these disputed facts later in these reasons.

[31]     We appreciate that Baragwanath J prefers Baroness Hale’s approach.   He considers our interpretation of art 15 (and its New Zealand “translation”, s 111) too liberal.  But it must be remembered that the overriding purpose of Subpart 4 of Part 2 of COCA is “to implement in New Zealand law the Hague Convention”: see s 94(a). The Hague Convention itself is, as Thorpe LJ said in Hunter v Murrow, “a living instrument”: at [30]. His Lordship went on:

Revision of the text as drafted and agreed in 1980 is simply impracticable, given that any revisions would have to be agreed among such a large body of Contracting States.  Therefore evolutions necessary to keep pace with social and other trends must be achieved by evolutions in interpretation and construction.  This is a permissible exercise given the terms of the Vienna Convention on the Law of Treaties, which also came into force in 1980. Article 31(3)(b) permits a construction that reflects “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”.

The three bullet questions

[32]     The real thrust of the request is contained in the three bullet questions.  They all concern New Zealand’s domestic law.  (Arguably, the first requires us to provide a double-headed answer, describing both New Zealand’s domestic law and our perception of the father’s custody rights under the Convention.   We propose answering only the first part of that.)  We do not know what weight the Australian courts will place on our answers to these questions: that is a matter for them.

[33]     We respectfully question, even with respect to the bullet questions, whether it was sensible for the Australian Central Authority to make an art 15 request.

[34]     First, in  our  view,  the  art  15  power should  rarely be  exercised  between Australia and New Zealand.   Our legal systems are very similar.   New Zealand judges are well  used  to  interpreting Australian  legislation  and  Australian  cases; Australian judges are similarly well used to reading and understanding our statutes and cases.  If need be, the courts of each country can receive expert evidence as to the  law  of  the  other,  should  that  be  necessary.    Article  14  of  the  Convention expressly provides that courts of the requested state “may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State  of  the  habitual  residence  of  the  child,  without  recourse  to  the  specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable”.  That article has been implemented in New Zealand by s 115 of COCA.  There is a similar provision in the Australian Family Law (Child Abduction Convention) Regulations 1986 (Cth): see reg 29.   All this request has done is delay the determination of whether Sam should be returned to New Zealand. An Australian Family Court judge could easily have formed a view of the applicable New Zealand law without the guidance of our courts.

[35]   In Hunter v Murrow, the English Court of Appeal referred to the real disadvantages which can flow from art 15 requests. Thorpe LJ said at [40]:

In my judgement the Article 15 request was not appropriate in this case.  The dispute  between  the  New  Zealand  experts  as  to  whether  this  was  an agreement recognised in law regulating the father’s contact was a bye-way. The mother’s real defence was that what he exercised was no more than a few hours of visiting contact each week and that, according to this jurisdiction’s construction of Articles 3 and 5, could not have amounted to “rights  of  custody”.     That  defence  had  to  be  adjudged  here.     The New Zealand adjudication would not be binding.  Its request merely risked the waste of precious months and substantial legal costs.   It has extended what is intended to be a swift summary remedy into a lengthy and complex piece of international litigation.

[36] Dyson LJ expressed similar views at [50] and [51]. He concluded that it had been a mistake in that case to request from the New Zealand courts “a ruling on the [New Zealand] domestic law question under article 15”; he added that “still less was there justification for a request for a ruling on the Convention question”: at [59]. In short, the English courts could have worked out what New Zealand domestic law was, either with the assistance of evidence from experts or by reading New Zealand statutes and cases for themselves, utilising art 14: at [51].

[37]     Lloyd LJ expressed similar views at [61]-[63].

[38]     In In re D, the House of Lords also referred to the disadvantages which can flow from unnecessary art 15 requests. In that case, the delays caused by seeking Romania’s views on the child’s removal had led to extraordinary delay; indeed, by the time of Their Lordships’ decision, the child had been in England almost four years: at [4]. Lord Carswell spoke of the need for “great care [to] be taken to keep resort to [the art 15] procedure to the absolute minimum, because of the delay inevitably involved, tending to impair the usefulness of what is envisaged as a speedy and relatively summary procedure under the Hague Convention”: at [70].

[39] Secondly, the art 15 request was not appropriate in this case because crucial facts were hotly in dispute. How did the Australian Central Authority think the New Zealand courts were going to answer any of the three bullet questions? All of them were based on disputed facts. This put the New Zealand High Court in a very difficult position, which led to its having to express its opinion in the alternative: see above at [6]. The High Court correctly observed that it could not answer the underlying factual dispute, which was for the Family Court of Australia to determine: at [119].

[40]     It is tempting simply to hold that we decline to answer the bullet questions, given the factual dispute, which we cannot resolve.   But we have concluded that would be inappropriate as it would leave the High Court judgment under appeal as an “authority” for the propositions stated in it.  That would be undesirable given that there are a number of propositions in that judgment with which we do not agree. Accordingly we go on to consider the bullet questions the parties argued before us.

[41]     The High Court declined to answer the third bullet question.  The father did not appeal against that refusal.  Accordingly, we do not answer it either.

[42]     The High Court did answer the second bullet question.  It held that whether or not the father was a guardian of the child turned on whether or not the father and the mother were living together as de facto partners at the time of Sam’s birth. Again, neither side challenges that conclusion.

[43]     The real dispute relates to the answer given to the first bullet question.  We are solely concerned with that question in these reasons.

What were the father’s rights under New Zealand domestic law?

Introduction

[44]     In the discussion which follows we are working on an assumption the father was not Sam’s guardian, the father and mother having not been living together as de facto partners at the time of Sam’s birth.  In those circumstances, did he have rights of custody?  As we have indicated above, the father’s counsel argued he did have such rights either pursuant to an agreement or by virtue of his parenting in practice. Because of the view we take on the first argument, we do not need to express an opinion on the latter.

[45]     Further,  we are not  determining whether  the  rights  which  the father has amount to “rights of custody” under art 3, as interpreted in Australia.   That is a question for the Family Court of Australia to determine.

A parenting plan

[46]     In 2007 the mother and father both signed a parenting plan.  The counsellor reported to the Family Court under s 11(2) of the Family Proceedings Act that the parties had resolved “the question of the custody of the child”.

[47]     Neither party exhibited to an affidavit a copy of the signed agreement.  But its terms appear clearly enough from the affidavit of the mother.  She said that under the parenting plan the father was “entitled to have [Sam] with him approximately two days one week and four days the next”.  What was agreed is further fleshed out in a Family Report, dated 9 May 2008, prepared for the Family Court of Australia. Peta Densmore, a Family Consultant with the Family Court of Australia, interviewed the mother and Sam.  She recorded the agreement in these terms:

At this time, it was agreed that [Sam] would spend Wednesday and Friday through to Sunday/Monday with his father one week and Wednesday and Thursday  with  his  father  on  the  alternate  week.    This  continued  until

26 February 2008 when [Sam] and his mother departed from New Zealand to Australia.

[48]    We have no doubt that, subject to the arguments addressed below, that agreement conferred on the father “the role of providing day-to-day care for the child” for the six days a fortnight on which it was agreed he was to have Sam.  While the terms “day-to-day care” and “contact” are not mutually exclusive, the father’s agreed parenting role was squarely within the definition of “day-to-day care”, as set out in s 8 of COCA.  See too s 48 of COCA, which provides for parenting orders, which may provide for day-to-day care and/or contact: see subss (2) and (3).  The concept  of  “day-to-day  care”  is  synonymous  with  the  former  concept  under New Zealand domestic law of “custody”.

[49]     The concept of “custody” by that name reappears in one part of COCA, namely the subpart implementing the Hague Convention.  That is because the Hague Convention itself uses the terms “rights of custody” and “rights of access”.   The New Zealand  Parliament  could  not  jettison  the  use  of  the  old-fashioned  term “custody” in this context, but did make clear in the definition of “rights of custody” for the purpose of Hague Convention applications that the Convention’s definition of “rights of custody”, namely “rights relating to the care of the person of the child”, equated with the new concept of “day-to-day care” used elsewhere in COCA.  For convenience, and to illustrate the point, we set out s 97:

For the purposes of this subpart, rights of custody, in relation to a child, include the following rights attributed to a person, institution, or other body, either jointly or alone, under the law of the Contracting State in which the child was habitually resident immediately before the child’s removal or retention:

(a)     rights  relating  to  the  care  of  the  person  of  the  child  (for example, the role of providing day-to-day care for the child); and

(b)     in  particular,  the  right  to  determine  the  child’s  place  of residence.

[50]     Two arguments are advanced as to why the parenting plan did not confer full custody (day-to-day care) rights on the father:

(a)     The agreement was not one “having legal effect” under New Zealand law;

(b)     Even if it was, it did not confer on the father the right to determine

Sam’s place of residence.

An agreement “having legal effect”?

[51]     For  the  purposes  of  New  Zealand  domestic  law,  it  is  largely  irrelevant whether an agreement such as the parenting plan in this case has “legal effect”.  So long as both parents abide by it, it has practical effect.  If one parent ceased to abide by it, the other could apply to the Family Court to have it embodied in a court order and then enforced.  That step would be taken pursuant to s 40 of COCA, which we set out in full:

40       Agreements between parents and guardians

(1)      A party to an agreement to which subsection (2) applies—

(a)       may request counselling in respect of a dispute relating to the agreement, under section 65(1); and

(b)may seek to have terms of the agreement embodied in an order of the Court that may be  enforced,  as provided  in subsections (3) and (4) of this section.

(2)This  subsection  applies  to  an  agreement  between  parents  or guardians of a child so far as it relates to when 1 or more specified persons have the role of providing day-to-day care for the child or have contact with the child, or to the upbringing of the child, or to any combination of those matters.

(3)An agreement to which subsection (2) applies cannot be enforced under this Act, but some or all of the terms of the agreement may be embodied in an order of the Court if, under 1 or more provisions of this Act other than this section (for example, under section 48(1)),—

(a)some or all of the parties to the agreement may apply for the order; and

(b)      the order may be made by the Court.

(4)The order may be enforced under this Act in the same way as an order that does not embody terms of an agreement to which subsection (2) applies.

[52]     It is common ground that the parenting plan in this case was one to which s 40 applied.  Mr Page submitted that subs (3) made it clear that the agreement did not have legal effect until embodied in a court order, which did not occur in this case.  The reason we are concerned with whether a s 40 agreement is an agreement having  legal  effect  is  that  this  has  significance  under  the  Hague  Convention. Article 3 of the Convention reads as follows:

The removal or the retention of a child is to be considered wrongful where—

a)it  is  in  breach  of  rights  of  custody  attributed  to  a  person,  an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b)        at  the  time  of  removal  or  retention  those  rights  were  actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. [Emphasis added.]

[53]     Mr Page intends arguing in the Australian Family Court that the father could not have acquired any rights under the parenting plan because it was not “an agreement having legal effect”.   Ms Casey, or her Australian counterpart, will be arguing to the contrary.  Whether the parenting plan is “an agreement having legal effect” for Convention purposes is entirely a matter for the Australian courts.  But, for what it is worth, we express a view as to whether the parenting plan in this case would be considered to have “legal effect” under our domestic law.

[54]    This question has already been determined by this court in Dellabarca. Dellabarca  was  decided  prior  to  the  enactment  of  COCA,  but  s 18  of  the Guardianship Act 1968, the then applicable statute, was in similar terms to s 40 of COCA.   In Dellabarca, this court held that an agreement as to custody was an agreement having legal effect. Mr Dellabarca, a non-guardian father, nonetheless failed to establish he had rights of custody, but that was because this court determined that the understanding he and Ms Christie, the mother, had reached was not “an agreement”, for the following reasons taken together (at 556):

•      it is not in the form of an agreement;

•       it is not signed by the mother and father;

•it  is,  to  quote  the  [High  Court]  Judge,  “expressed  somewhat awkwardly and ambiguously”;

•it is imprecise in its terms, for while it records the father’s request in relatively precise terms the “decision reached” is for access on a “regular basis plus one week in January 1996”;

•moreover it was to be reviewed six monthly, the first review arising at about the time of the Family Court hearing.

[55]     It appears the agreement in the current case does not have those disqualifying aspects.  This court in Dellabarca also noted that there is an “essential difference in principle between the validity or legal effect of an agreement, on the one hand, and the methods of enforcement of it, on the other”: at 556.

[56]     In M v H [Custody] [2006] NZFLR 623 (HC), Panckhurst and Chisholm JJ, sitting as a Full Court, followed Dellabarca.  They held that the father in that case had acquired “rights of custody” by virtue of an oral agreement.  We express no view as to whether that decision is correct in its finding that the father’s rights of access amounted to “rights of custody”; all we are citing the case for is its confirmation that an agreement relating to day-to-day care and contact can be an “agreement having legal effect”.

[57]     In our view, there is no reason to depart from Dellabarca.  There is nothing in COCA to suggest that Parliament disagreed with this court’s view of the legal effect of custody agreements.   If anything, it would seem Parliament was even keener to encourage parental agreements than previously.   Subpart 2 of Part 2 of COCA, which is headed “Care of Children: Making arrangements and resolving disputes”, now opens with the following section, which did not have a counterpart in the Guardianship Act:

39     Purpose of sections 40 to 43

The purpose of sections 40 to 43 is to encourage parents, guardians, and donors to agree to their own arrangements for the child’s care, development, and upbringing.

[58]     It would be inconsistent with that purpose if s 40 agreements as to custody were accorded no status for Hague Convention purposes.  It would mean that a non-

guardian parent could never rely on a custodial agreement and would have to apply, quite needlessly, to the Family Court to have the agreement embodied in a court order before he could acquire peace of mind.

[59]     The parenting plan in this case also has “legal effect” in a different way.  The fact the parties had entered into a s 40 agreement would be extremely significant if one of them were to apply, for instance, under s 48(1) for a parenting order.  It would also be of great significance if a non-guardian father were to apply to be appointed as a guardian of the child under s 19 of COCA.

[60]     In  summary,  we  are  satisfied  that  the  parenting  plan  was  an  agreement “having legal effect” under New Zealand law.  Whether it amounts to “an agreement having  legal  effect”  for  the  purposes  of  art  3,  as  interpreted  in  Australia,  is exclusively a matter for the Australian courts.

The right to determine the child’s place of residence

[61]     Mr Page’s second argument was that, even if the parenting plan was an agreement “having legal effect”, it did not confer on the father the right to determine Sam’s  place  of  residence.    Mr  Page  was  keen  to  establish  that  because  of  an argument he intends to run in the Australian Family Court when the application to have Sam returned to New Zealand is finally heard.  The argument in Australia will turn on the definition of “rights of custody” in art 5:

For the purposes of this Convention—

a)“rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

b)     “rights of access” shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.

[62]     Mr Page’s argument in Australia will be that that definition has to be read conjunctively; that is to say, the applicant (here the father) will have to satisfy the Australian court that, prior to Sam’s removal, he had not only rights relating to the care of Sam but also the right to determine Sam’s place of residence.  The argument will be that he may have had the former rights but he did not have the latter right.

[63]     We do not accept Mr Page’s argument.  We consider the agreement in this case did confer “the right to determine the child’s place of residence”.  The mother agreed the father should have day-to-day care of Sam six days a fortnight.   That meant Sam was to live for those six days in the place his father chose.  Obviously, however, the shared care arrangement the parties reached meant each was obliged to live within reasonable proximity of the other.  Neither could choose to live further afield with Sam without the consent of the other or, in the absence of consent, without a court’s blessing.

[64]     We go no further than that.  It is not for us to say how the Australian courts should construe art 5 of the Convention or its domestic equivalent.   The current New Zealand view is that the right to determine the child’s place of residence is “just one particular qualifying instance and not a necessary qualification”: Dellabarca at

552.  In that case, this court went on to summarise its finding on this point at 555:

Claimants  under  the  convention  and  [the  Guardianship  Amendment  Act

1991] do not have to establish that they have the right to determine the place of the child’s residence.

[65]     We are aware, however, that courts in other countries have interpreted the definition of “rights of custody” in art 5(a) differently.   We are not sure what the current  Australian  interpretation  is.    Nor  do  we  predict  what  this  court  or  the New Zealand Supreme Court will do when faced with an application to return a child abducted to New Zealand.   Will we follow Dellabarca or will we adopt a new construction in light of overseas authorities to the contrary?  That will have to await a case where the issue arises.

[66]     In summary, we are satisfied that pending reconsideration of Dellabarca by this  court  or  the  Supreme  Court,  the  Family Court  and  the  High  Court  should continue to follow Dellabarca’s interpretation, as set out above at [64].

Conclusion

[67]     We accordingly hold that, under New Zealand domestic law, the father, even if not a guardian, acquired under the parenting plan rights relating to Sam’s care,

including the role of providing day-to-day care for Sam.   He also acquired, under that agreement, the right, jointly with the mother, to determine the child’s place of residence.  The agreement did have legal effect even though not embodied in a court order.

[68]     In light of this conclusion, we do not need to go on to consider the father’s alternative argument based on inchoate rights.   Clearly those rights, if they exist, could not be greater than the rights acquired under the parenting plan.

[69]     Baragwanath J, on the domestic law questions, essentially agrees with us.  He would go further, however, and express an opinion on the Convention question.  For the reasons given earlier, we do not see that as appropriate.  We express no opinion on the second half of his analysis.

The High Court decision

[70]     So far, we have referred only briefly to the High Court judgment under review.  That is because the argument presented to us differed significantly from the argument presented in the High Court.  In the High Court, for reasons we know not, the father, who was at that stage not represented by Ms Casey, did not seek to rely on the parenting plan as an agreement having legal effect: see the High Court judgment at [103] and [111].  The High Court therefore concentrated on the “inchoate rights” argument, which Ms Parsons also argued before us.  The High Court was, therefore, addressing an issue which we have found it unnecessary to determine, as the father effectively “wins” on an upstream argument.

[71]     In these circumstances, we see it as unnecessary to analyse the High Court judgment.   Our silence on many aspects of it should not, however, be taken as implied agreement with it.

[72]     We make just one comment.   The High Court did not follow this court’s interpretation of the right to determine the child’s place of residence in Dellabarca. As we set out above at [64], Dellabarca  is  authority  for  the  proposition  that claimants under the Convention “do not have to establish that they have the right to

determine the place of the child’s residence”, provided they do have rights relating to the  care  of  the  person  of  the  child.    The  High  Court  at  [107](h)  expressly disapproved of this court’s interpretation and held that claimants must establish not only rights relating to the care of the person of the child but also the right to determine a child’s place of residence.  It was not for the High Court to choose not to follow   the   decision   of   this   court.      If   Dellabarca   on   this   point   requires reconsideration, that reconsideration should take place, perhaps in this court or otherwise in the Supreme Court.

Mr Page’s position

[73]     Before we come to the result in this case, we comment briefly upon the position of the mother’s counsel, Mr Page.  We recap the relevant facts.  Mr Page was originally admitted as a barrister and solicitor in New Zealand.  But he left these shores many years ago to practise in Australia.   He has a practising certificate in Queensland, which permits him to practise in all the Australian states and territories. He  pays  a  practising  certificate  fee  only  in  Queensland.    He  does  not  have  a practising certificate in this country.  Did he need one?

[74] Before the hearing, Mr Page had been in contact with the New Zealand Law Society, which had told him he would need a practising certificate. It also told him he would need to pay a practising certificate fee for New Zealand. Mr Page was reluctant to incur that cost, as he was appearing on the mother’s behalf in this country on a “without fee” basis. Accordingly, he respectfully asked us whether we would hear him by leave granted under our inherent jurisdiction. Alternatively, he said he would make application under reg 15 of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008. Given the time constraints on the oral hearing, we did not have time to sort out the correct legal position as to entitlement to practise in New Zealand under the new Lawyers and Conveyancers Act 2006, which came into force on 1 August last year. In the end, we simply granted Mr Page leave to appear: we were after all grateful for his assistance. But, following the hearing, we decided to establish with the New Zealand Law Society exactly what the legal position is with respect to Australian lawyers who wish to practise in the

New Zealand courts.  We are grateful for the assistance the Executive Director of the New Zealand Law Society provided by way of memorandum in response to this court’s minute.

[75] Mr Page is in a slightly unusual position so far as Australian lawyers are concerned in that he first qualified in New Zealand. Accordingly, he did not need to rely on his Australian status and the Trans-Tasman Mutual Recognition Act 1997 for his admission as a barrister and solicitor here: see the Lawyers and Conveyancers Act, s 49. But, in order to practise, he, like other Australian lawyers who have been admitted here, does need a practising certificate under the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations. Australian lawyers also do have to pay a further practising fee when taking out a New Zealand certificate. Practice in New Zealand is not therefore in all respects the same as practice out of State.

[76]     Regulation 15(2), on which Mr Page relied as a fallback, is not relevant to the circumstances in which he found himself.  That regulation permits the High Court to grant a lawyer leave to practise on his or her own account as a barrister and solicitor, or as a barrister sole, if the lawyer satisfies the court that he or she is entitled to practise as a lawyer, in one or more Australian jurisdictions, in a manner that is equivalent  to,  or  materially  the  same  as,  practising  on  one’s  own  account  in New Zealand as a barrister and solicitor, or as a barrister sole, as the case may be. That regulation would permit Mr Page to immediately commence practice here as a barrister, but it does not obviate the need for a practising certificate.

[77] We were gratified to learn, however, that we had not breached the law in permitting Mr Page to address us on the mother’s behalf without having a practising certificate. Section 27(1)(b)(ii) of the Lawyers and Conveyancers Act allows a court to permit anyone to appear as an advocate in a particular case. That provision reflects the inherent jurisdiction of the court to determine who may appear before it as advocates: Black v Taylor [1993] 3 NZLR 403 at 408-409 (CA). Unbeknownst to us, we were acting under s 27(1)(b)(ii) of the Act when we authorised Mr Page’s appearance!

Result

[78]     So far as we are aware, neither side caused the High Court judgment to be sealed.  It should have been sealed: see the old High Court Rules, r 542.  In these circumstances, we must look to the reasons for judgment to ascertain the exact form of declaration given by the High Court.  See [119]:

(a)     Were the Family Court of Australia to find that the child’s father and mother were living together as de facto partners at the time of the child’s birth then, in terms of the relevant provision of the Care of Children Act 2004, the father would be a guardian of the child, with custody rights under New Zealand law within the meaning of Article

5a of the Convention.  In that case the child’s removal by the mother from New Zealand to Australia would be wrongful within the meaning

of Article 3.

(b)Were the Family Court of Australia to find that the child’s father and mother were not living together as de facto partners at the time of the child’s birth then, in terms of the relevant provision of the Care of Children Act 2004, particularly in terms of s 17(3), the mother would be the sole guardian of the child.  In that situation the father would not have rights of custody under  New  Zealand law,  and  although  the child’s removal from New Zealand to Australia would be regrettable, it would  not  be wrongful within the  meaning of  Article  3 of the Convention.

[79]     We are unable to sustain either declaration in the form given.  In both cases, the declarations go beyond determining the father’s rights under New Zealand law. They purport to record a New Zealand perception of the autonomous law of the Convention, whereas what the Australian court will apply, once it has determined the father’s rights under our law, will be the Australian perception of the autonomous law of the Convention.

[80]     In addition, declaration (a) is wrong in holding that, if the father was Sam’s guardian, his removal by the mother from New Zealand to Australia “would be wrongful within the meaning of Article 3”.  That part of the declaration overlooks another  factual  dispute.    That  was  whether  the  father  had  consented  to  Sam’s removal to Australia.   The mother strongly denies that she took Sam without the father’s consent.  She has asserted, under oath, that the father had repeatedly told her she could take Sam to Australia to live if her mother (Sam’s grandmother) was ill and needed the mother to look after her.   The grandmother lives on Queensland’s

Sunshine Coast.  According to the mother, the grandmother is sick; she has “certain medical conditions” which mean she “needs a constant carer”.  The grandmother’s doctor has advised the mother, according to the mother, that in his view the mother “should be made [the grandmother’s] official carer”.   It is the mother’s case, therefore, that the father had consented to the removal if certain conditions came to pass, which conditions have come to pass.  If this is true the removal would not be wrongful; it would not be in breach of the father’s rights (whatever they were), as he would have consented to the removal.

[81]     The father does not accept he consented.  He says that he told the mother that if the grandmother became ill, the mother could go and look after her, but leave Sam with him.

[82]     That is a matter which the Family Court of Australia will have to determine. In light of that dispute, courts in this country cannot make declarations that the child’s removal was wrongful, even if the father was a guardian.   He may have consented.

[83]     Declaration (b) is wrong in so far as it states that under New Zealand law the father did not have rights of custody.

[84]     In the circumstances, in place of the declarations made in the High Court, we substitute as follows:

(a)     Whether the father is a guardian of the child under the Care of Children Act 2004 turns on whether or not the father and the mother were living together as de facto partners at the time of the child’s birth;

(b)The father, jointly with the mother, had, in relation to the child, immediately before the child’s removal from New Zealand to Australia, rights relating to the care of the person of the child, including the role of providing day-to-day care for the child, and, in particular, the right, jointly with the mother, to determine the child’s place of residence.

[85]     No one made submissions with respect to costs.  We reserve costs.  We shall determine costs on the papers, if necessary.

[86]     In this judgment, in order to protect his privacy, we have called the child Sam

(not his real name).

[87]     In  White v Northumberland [2006] NZFLR  1105  at  [63]-[64],  this  court noted the difficulty faced by lawyers in coping with case names which are frequently a jumble of initials.   For ease of later citation, we give leave for this case to be reported and cited as Fairfax v Ireton (which are not, of course, the parties’ real names).  The High Court made a similar direction: at [124].

BARAGWANATH J

Table of Contents

Para No

Introduction  [88] Factual context  [98] Legal context

COCA: rights under domestic law  [100]

The Convention  [105]

COCA: codification of Convention rights  [111] The decision of the High Court  [115] Discussion  [119]

(i) The issue of New Zealand domestic law: what are the father’s

rights in relation to Sam?  [121] (ii) Should this Court answer the Convention questions?  [143] (iii) The Convention questions  [151] England  [158] Australia  [167] Canada  [166] South Africa; Scotland; USA  [168] Analysis  [169]

Result I would have given  [199]

Introduction

[88]     A 12 year old boy, Sam, was taken from New Zealand to Australia by his mother, the respondent, without the consent of his father, the appellant.  The crucial

question in the case is whether the father has relevant “custody rights” in relation to his son, rather than mere entitlement to “access rights”.

[89]     If so, the father may seek relief against the mother in relation to Sam under the Hague Convention on the Civil Aspects of Child Abduction (the Convention) to which New Zealand and Australia are parties, which is appended to the Care of Children Act 2004 (COCA) and which has in part been absorbed into New Zealand domestic law by Subpart 4 of Part 2 of COCA.  If not, unless she was living with his father when Sam was born, only the mother has custody rights: because the parents were not married, the mother was Sam’s sole guardian, a status carrying custody rights.  The question whether the parents were living together, which is disputed and will be determined by the Family Court of Australia, is not before us.

[90]     The Australian Central Authority, exercising jurisdiction under art 15 of  the Convention, has asked the New Zealand Central Authority to seek the following determination of the New Zealand courts:

that the removal of Sam to Australia was wrongful within the meaning of the

Convention

and in particular:

whether [the father] had custody rights under New Zealand law within the meaning of the Convention.

[91]     Custody rights under the Convention would entitle the father to rely upon Chapter 3 which, in general, requires the return forthwith of an abducted child to the state of his or her habitual residence.  If his rights are only to access (or indeed the right to apply for access) he cannot avail himself of Chapter 3; his Convention rights would be limited to whatever orders might be made for access in Australia (art 21).

[92]     An inconsistency of approach to the Convention has developed between the New Zealand courts and senior courts elsewhere, which ought in principle to receive the same interpretation by the courts of all states parties.  Because of the importance of the issue, the case was moved from the Family Court to a Full Court of the High Court consisting of Priestley and Cooper JJ.  Holding that New Zealand should

follow developments elsewhere, they rejected the father’s claim to custody rights which would entitle him to relief under the Convention.  He now appeals.

[93]     In  Gross  v  Boda  [1995] 1 NZLR 569, a five-judge panel of this Court construed in a sense favourable to the father legislation which preceded COCA and, in its light, the Convention. The High Court elected to depart from that decision. There is a question whether, in terms of precedent, it was right to do so.

[94]     There is a threshold issue as to the role of this Court.  The majority would follow the decision of the English Court of Appeal in In re J (A Minor) (Abduction) [1990] 2 AC 562, affirmed on appeal by the House of Lords in the same report, that it is limited to considering a narrow question of (here New Zealand) domestic law, excluding any international dimension: does the father have custody rights under that law, disregarding the Convention? An alternative view, adopted by Baroness Hale for the House of Lords in Re D (Abduction: Rights of Custody) [2007] 1 AC 619 at [44], is that this Court’s task is both to identify the father’s rights in domestic law and to categorise those rights in Convention terms.

[95]     For reasons that follow, I prefer the latter view.  On that approach, the issue on this appeal is whether, in terms of art 3 of the Convention, the father had “rights of custody … by reason  of  an  agreement  having legal  effect  under  the  law  of [New Zealand]” despite the fact that the only written agreement is one which, by s 40(2) of COCA, cannot be enforced under that Act.

[96]     To answer it requires the New Zealand courts to perform the task later to be undertaken by the Australian courts, namely to determine how, if the father has rights under New Zealand domestic law, they are to be characterised: are they rights of custody or only rights of access according to the autonomous international jurisprudence which governs the true construction of the Convention?

[97]     So in my view this case involves two questions of law:

(a) In terms of domestic law, what are the father’s rights in relation to

Sam?

(b)In terms of international law, what answer ought all domestic courts in the states parties to the Convention give to the question whether such rights are to be characterised as custody rights under the Convention?

Factual context

[98]     Sam  was  born  in  New  Zealand  and  lived  here  until  the  removal  which occurred over a year ago on 26 February 2008.   Although his parents had never married, their names both appear on his birth certificate.   Sam uses his father’s surname.

[99]     The  history  of  Sam’s  care  arrangement  is  disputed.    Article  7  of  the Convention requires the “prompt” return of children in wrongful removal cases. That requirement will not permit the detailed enquiry with cross-examination which will be conducted in whichever jurisdiction is held to be the proper forum.  But as the  High Court  of  Australia  emphasised  in  MW  v  Director-General  of  the Department of Community Services (2008) 244 ALR 205 at [46]-[50], the court’s fact finding task must be performed with care. It is common ground that Sam’s parents, who were living separately, had received counselling on seven occasions. They had drafted, signed and orally agreed to a parenting plan under which since May 2007 Sam had lived with his mother alternately five days in one week and three in the next, and with his father for the other two days and four days of those weeks.

Legal context

COCA: rights under domestic law

[100]   Subpart 2 of Part 2 of COCA - “Care of children: Making arrangements and resolving disputes” - begins:

39 Purpose of sections 40 to 43

The purpose of sections 40 to 43 is to encourage parents, guardians, and donors to agree to their own arrangements for the child's care, development, and upbringing.

40 Agreements between parents and guardians

(1) A party to an agreement to which subsection (2) applies—

…

(b) may seek to have terms of the agreement embodied in an order of the Court that may be enforced, as provided in subsections (3) and (4) of this section.

(2) This subsection applies to an agreement between parents … of a child so far  as  it  relates  to  when  1  or  more  specified  persons  have  the  role  of providing day-to-day care for the child or have contact with the child, or to the upbringing of the child, or to any combination of those matters.

(3) An agreement to which subsection (2) applies cannot be enforced under this Act, but some or all of the terms of the agreement may be embodied in an order of the Court if, under 1 or more provisions of this Act other than this section (for example, under section 48(1)),—

(a) some or all of the parties to the agreement may apply for the order; and

(b) the order may be made by the Court.

(4) The order may be enforced under this Act in the same way as an order that does not embody terms of an agreement to which subsection (2) applies.

[101]   Section 41 empowers parties to an agreement under s 40(2) to apply to have the terms of the agreement embodied in a court order which is enforceable as if it were a “parenting order”.  A parenting order is made under s 48.  That section states:

48 Parenting orders

(1) On an application made to it for the purpose by an eligible person, the Court may make a parenting order determining the time or times when specified persons have the role of providing day-to-day care for, or may have contact with, the child.

(2) A parenting order determining that a person has the role of providing day-to-day care for the child may specify that the person has that role—

(a) at all times or at specified times; and

(b) either alone or jointly with 1 or more other persons.

(3) A parenting order determining that a person may have contact with the child may specify any of the following:

(a) the nature of that contact (for example, whether it is direct (that is,  face  to  face)  contact  or  some  form  of  indirect  contact  (for example, contact by way of letters, telephone calls, or email)):

(b) the duration and timing of that contact:

(c) any arrangements that are necessary or desirable to facilitate that contact.

(4) A parenting order may be a final order or it may be an interim order that has effect until a specified date or event or until the Court orders otherwise.

(5) A parenting order may also be subject to any other terms or conditions (including, without limitation, a condition requiring a party to enter into a bond) the Court determines.

(6) This section is subject to [s 52]. (Emphasis added).

[102] Section 52 states:

Court must consider contact arrangements in certain cases

If a Court proposes to make a parenting order that does not give a parent the role of providing day-to-day care for a child, the Court must consider whether and how the order can and should provide for that parent to have contact with the child.

(Emphasis added).

[103]   In summary:

(a)    parents are encouraged to agree to their own arrangements for the child’s care (s 39);

(b)such agreements are not enforceable under COCA unless embodied in a court order (s 40);

(c)    the court may embody it in an order (s 41);

(d)    such an order has the effect of a parenting order under s 48; (e)     a parenting order determines:

(a) “the role of providing day-to-day care” which may be either alone or jointly; and

(b) “contact” (s 48).

[104]   In the present case, there was a s 40 agreement in place but no court order.

The Convention

[105]   COCA gives effect to the Convention in two different ways.   One is by importing direct reference to part of the Convention into New Zealand law; the other is by translating the language of the remainder of the Convention into language drafted by New Zealand Parliamentary Counsel and adopted in COCA instead to the Convention  language.     In  the  latter  case  there  is  to  be  applied  the  familiar presumption that New Zealand statute law will, as far as possible, be construed in accordance with New Zealand’s obligations under the Convention.

[106]   Article 1 of the Convention states as its objects:

(a)       to secure the prompt return of children, wrongfully removed to or retained in any Contracting State; and

(b)      to ensure that rights of custody and of access under the law of one

Contracting State are effectively respected in the other Contracting States.

[107]   By art 2, the Contracting States are to take all appropriate measures to secure within their territories the implementation of the objects of the Convention and for this purpose to use the most expeditious procedures available.

[108]   By  art  7,  the  father’s  application  under  art  8  of  the  Convention  to  the Attorney-General’s Department of the Australian Federal Government gave rise to an obligation upon that Department, as the Central Authority of Australia, to assist in securing the return of abducted children and the New Zealand Central Authority, as its New Zealand equivalent, to co-operate with the Central Authority of Australia to secure the prompt return of a child who has been wrongly removed.

[109]   In the following version of arts 3 and 5, and in later citations, explanatory comment has been added in parentheses:

Article 3

The removal [from New Zealand] or the retention [in Australia] of a child is to be considered wrongful where—

(a)       it  is  in  breach  of  rights  of  custody  attributed  to  a  person,  an institution or any other body, either jointly or alone, under the law of the State [New Zealand] in which the child was habitually resident immediately before the removal or retention; and

(b)       at  the  time  of  removal  or  retention  those  rights  were  actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State [New Zealand].

… Article 5

For the purposes of this Convention—

(a)       rights  of  custody shall  include  rights  relating  to  the  care  of  the person of the child and, in particular, the right to determine the child's place of residence;

(b)       rights of access shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.

[110]   Article 15 states:

The judicial or administrative authorities of a Contracting State [Australia] may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of  the  child  [New  Zealand]  a  decision  or  other  determination  that  the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States [Australia and New Zealand] shall so far as practicable assist applicants to obtain such a decision or determination.

COCA: codification of Convention rights

[111]   The  New  Zealand  Parliament’s  translation  of  certain  of  the  Convention provisions into sections of COCA appears within Part 2 of COCA - “Guardianship

and care of children” - and in particular Subpart 4 – International child abduction. Those derived from art 15 are expressed in s 111:

Request for declaration that child wrongfully removed

A Court that has jurisdiction under this subpart [the New Zealand Family Court and High Court] may, if requested by the Central Authority of another Contracting State [Australia], make an order declaring that the removal of a child from New Zealand to that Contracting State was wrongful within the meaning of Article 3 of the Convention.

The jurisdiction of the High Court in the present case was accordingly to consider whether to make an order declaring that the removal of the child from New Zealand to Australia was wrongful within the meaning of art 3.

[112]   Arts 3 and 5 have also been translated into COCA.  Section 97 states:

Rights of custody defined

For the purposes of this subpart, rights of custody, in relation to a child, include the following rights attributed to a person, institution, or other body, either jointly or alone, under the law of the Contracting State in which the child was habitually resident immediately before the child's removal or retention:

(a)       rights relating to the care of the person of the child (for example, the role of providing day-to-day care for the child); and

(b)       in particular, the right to determine the child's place of residence.

The concept of “day-to-day care” referred to in s 97(a) is defined in s 8:

… care that is provided only for 1 or more specified days or parts of days.

Section 95 specifies:

rights of custody has the meaning given to it by s 97.

rights of access include—

(a)       the right to visit a child (for example, under an order for contact made under this Act); and

(b)       the right to take a child for a limited period of time to a place other than the child's habitual residence (for example, under an order for contact made under this Act).

[113]   The highest form of custody right is that of the guardian.  Where, as in this case, the child was conceived before the commencement of COCA, the mother is the sole guardian if (a) she was neither married to or in a civil union with the father between conception and birth (which she was not), or (b) living with the father as a de facto partner at the time when the child was born (s 17(3)).  The Interpretation Act 1999 defines that concept:

29A Meaning of de facto relationship

(1) In an enactment, de facto relationship means a relationship between 2 people (whether a man and a woman, a man and a man, or a woman and a woman) who—

(a)  live  together  as  a  couple  in  a  relationship  in  the  nature  of marriage or civil union; and

(b) are not married to, or in a civil union with, each other; and

(c) are both aged 16 years or older.

[114]   It may be noted in passing that, had the father’s particulars been registered after the commencement of COCA, he would thereupon have become a guardian. But because they had already been registered the registration has no direct consequences in New Zealand domestic law, however relevant it may perhaps be to the guardianship dispute pending before the Australian court and to the construction of the legislation and the Convention.

The decision of the High Court

[115]   The High Court held that the father had no rights of custody (unless he is a guardian) and so no entitlement to relief under the Hague Convention.

[116]   It sought to distinguish the earlier judgment of this Court in Gross v Boda and also the decision in Dellabarca v Christie [1999] 2 NZLR 548 (CA), as well as a decision of a Full Court of the High Court (M v H [2006] NZFLR 623) in which there had been an abduction from New Zealand to England.  It followed the decision of the English Court of Appeal in Hunter v Morrow (Abduction: Rights of Custody) [2005] FLR 1119 which was a later stage, of the M v H litigation.  It relied also on the decision of the House of Lords in Re D (Abduction: Rights of Custody) and that

of the High Court of Australia in MW v Director-General of the Department of Community Services, in which the abduction had been from New Zealand to Australia.

[117]   While the members of the New Zealand High Court panel have formidable specialist expertise in relation to both the Convention and family law in general, and were fully entitled, for the purpose of assisting appellate courts, to express their contrary views upon decisions of this Court with which they disagreed, the High Court should not have declined to follow that authority, by which it was bound. R(RJM)  v  Work  and  Pensions  Secretary  [2008] 3 WLR 1023 (HL) states the principle at [64]:

Where the Court of Appeal considers that an earlier decision of this House, which would otherwise be binding on it, may be, or even is clearly, inconsistent with a subsequent decision of the [European Court of Human Rights (ECtHR)], then (absent wholly exceptional circumstances) the court should faithfully follow the decision of the House, and leave it to your Lordships to decide whether to modify or reverse its earlier decision. To hold otherwise would be to go against what Lord Bingham decided. As a matter of principle, it should be for this House, not for the Court of Appeal, to determine whether one of its earlier decisions has been overtaken by a decision of the ECtHR…

(a)     In  Hunter v  Murrow  Thorpe  LJ  expressed  discomfort  at  the  result  of declining to follow M v H.

(b)However, Professor Anton, former chairman of the drafting committee, had denied that a father’s right to veto removal amounts to a custody right. In Re D the House of Lords preferred the opinion accepted in Scotland, South Africa and certain US Federal Courts, to the effect that such a veto right amounts to a right of custody.

(c)     Care of children is very often no longer a binary exercise.  The concept of custody held “jointly” assumes a difference significance when working mothers are commonplace and the Family Court is sometimes making orders that the “day-to-day” care of a child be shared week and week about: see L v A [2004] NZFLR 298 (HC).

(d)The New Zealand legislature has enhanced to the status of guardian that of a father named in the birth certificate of a child born after COCA came into force.

(e)     In England there has been a similar law change: see the Adoption and

Children Act 2002, s 111:

the father shall acquire parental responsibility for the child if—

he  becomes  registered  as  the  child’s  father  under  any  of  the enactments specified in subsection (1A);

(f)     The  English  development  has  gone  further,  whereby  the  father acquires such responsibility when:

(a) he and the child’s mother make an agreement (a “parental responsibility agreement”) providing for him to have parental responsibility for the child… and the agreement, being in prescribed form, is formally recorded

even before

(b) the court, on his application, orders that he shall have parental responsibility for the child.

(g) In Australia since 1996 the Family Law Act 1975 has stated:

60B Objects of Part and principles underlying it

The objects of this Part are to ensure that the best interests of children are met by:

ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

ensuring  that  children  receive  adequate  and  proper  parenting  to  help  them achieve their full potential; and

ensuring  that  parents  fulfil  their  duties,  and  meet  their  responsibilities, concerning the care, welfare and development of their children.

The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

parents should agree about the future parenting of their children; …

(Emphasis added).

(g) According to a United States court, the law of Germany presumptively confers on both parents joint custody until a competent court enters a contrary order: Bader v Kramer 445 F 3d

346 (2006) at 350.

(h)The fact that courts, reflecting the attitudes of their societies, now tend to both be conscious of human rights and thus more child- focussed (as evidenced  by  the  new  Australian  legislation,  itself reflecting international trends) and readier to reject distinctions in terms of the custody parent/access parent and parents who are married/unmarried.

[176]   These factors evidence a fundamental change in attitudes to the relationship between child and father where the parents are unmarried.   They enhance the importance to the child of the father and the status of the father’s role in relation to the child.  They raise for consideration the application of the Vienna Convention on the Law of Treaties, art 31 of which states:

General rule of interpretation

1.  A  treaty  shall  be  interpreted  in  good  faith  in  accordance  with  the  ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

(3)…There shall be taken into account, together with the context:

…

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

…

[177]   Article 32 states

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

[178]   In Crown Health Financing Agency v P [2008] NZCA 362, the effect of changing circumstances on treaty interpretation was discussed in the following passage:

[319]… In McLachlan “The Principle of Systemic Integration and Article

31(3)(c)  of  the  Vienna  Convention”  (2005)  54  ICLQ  279  Professor

Campbell McLachlan QC stated at 318 – 9:

The principle of systemic integration in treaty interpretation operates before an irreconcilable conflict of norms has arisen. Indeed, it seeks to avert apparent conflicts of norms, and to achieve instead, through interpretation, the harmonisation of rules of international law. In this way, the principle furnishes the interpreter with a master key which enables him, working at a very practical level, to contribute to the broader task of finding an appropriate accommodation between conflicting values and interests in international society, which may be said to be the fundamental task of international law today.

Such approach was adopted by an Arbitral Tribunal of the Permanent Court of Arbitration chaired by Judge Rosalyn Higgins in Belgium v The Netherlands (The Iron Rhine) 24 May 2005 (available at < cpa.org> (last accessed 1 September 2008)).  It concerned a treaty of 1839. The Tribunal stated:

57 … the Tribunal wishes to draw attention to a matter which in its view is of great importance in this case: the problem of intertemporality in the interpretation of treaty provisions.

…

59 Since the Stockholm Conference on the Environment in 1972 there has been a marked development of international law relating to the protection of the environment. Today, both international and EC law require the integration of appropriate environmental measures in the design and implementation of economic development activities

… The Tribunal would recall the observation of the International Court of Justice in the Gabčíkovo-Nagymaros case that“[t]his need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development” (Gabčíkovo-Nagymaros (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7 at p. 78, para. 140).  And in that

context the Court further clarified that “new norms have to be taken into consideration, and . . . new standards given proper weight, not only   when   States   contemplate   new   activities   but   also   when continuing with activities begun in the past” (Ibid.).

[179]   That statement of international law principle coincides with the direction of

Parliament in the Interpretation Act 1999 concerning New Zealand statutes:

6 Enactments apply to circumstances as they arise

An enactment applies to circumstances as they arise.

That is a re-expression in less metaphorical terms of the former Acts Interpretation

Act 1924 that a statute is “always speaking”.

[180]   In  the  absence  of  any  definitive  authority  on  the  construction  of  the Convention, it falls to courts of the states parties to  contribute  not  only to  the interpretation but also to the development of what is an important component of international law.   Such process is seen in the application of other international Conventions, such as the 1957 Refugee Convention and the 1980 UN Convention on International Sales.

[181]   Great  restraint  is  needed  to  avoid  the  “projection”  of  narrowly domestic values on a Convention which must conform with the values of the other states parties.  But art 3 points the way to that.  Like art 15, it requires an initial assessment of what is the domestic law of the state of habitual residence of the child, then an appraisal of the question of international law of how the rights under the former law are to be characterised and whether on the evidence the removal is wrongful under art 3.

[182]   Over the three decades since 1980, domestic laws generally have tended to enhance the significance of what in 1980 was viewed as the “access” party to the child’s  life.    It  follows  from  what  is  an  international  change  of  ethos  that  in answering question (2) somewhat more weight may now properly be given than in the past to the position of that party.

[183]   Certainly the clear distinction of “mere access” cases and the art 3 stipulation that the custody rights must exist “under the law of [New Zealand]” remains and

must receive effect.  But it is essential when considering the Convention question to step back from that holding of New Zealand law and consider from a neutral internationalist standpoint how the father’s rights should be characterised in Convention terms.   There are powerful contentions available against his argument and also substantial recent material that assists it.

[184]   The mother’s argument is supported by the decision of the House of Lords in In re J (A Minor) (Abduction), followed by Baroness Hale in Re D.   In In re J, unmarried parents and their child were habitually resident in Western Australia.  De facto custody of the child was exercised by the parents jointly.  The House of Lords held that, since under the law of Western Australia the mother had sole legal rights of custody, the removal by her was not wrongful within the meaning of art 3 (despite a decision to the contrary by a judge of the Family Court of Western Australia).  The Re W jurisprudence was not discussed.

[185]   The fact that no argument to the contrary was advanced for the father in MW v Director-General of the Department of Community Services indicates that the Australian perception of the answer to question (2) has not to date differed from Re D.

[186]   On the other side, the standard text Lowe, Everall and Nichols ([25] above) at

14.23 cites In re F (Abduction: Custody Rights Abroad) [1995] Fam 224. In that case, Butler-Sloss LJ offered the following statement of principle at 229:

It is the duty of the court to construe the Convention in a purposive way and to make  the  Convention  work.  It  is  repugnant to  the  philosophy of the Convention for one parent unilaterally, secretly and with full knowledge that it is against the wishes of the other parent who possesses "rights of custody," to remove the child from the jurisdiction of the child's habitual residence. "Rights of custody" within the convention are broader than an order of the court and parents have rights in respect of their children without the need to have them declared by the court or defined by court order. These rights under the Convention have been liberally interpreted in English law.

Her  Ladyship  cited in support the decision of Waite  LJ  in In re B.  (A  Minor) (Abduction) at 260.  In that case the child was living in Australia with his unmarried father and grandmother.  The father held no rights of custody under the law of the Australian state.  The father and grandmother agreed to the temporary removal of the

child to Wales to stay with the mother, who failed to return the child. Waite LJ decided that, for the purpose of the Convention, the father had custody rights.  In the passage endorsed in In re F, he stated at 260:

The purposes of the Hague Convention were, in part at least, humanitarian. The objective is to spare children already suffering the effects of breakdown in their parents' relationship the further disruption which is suffered when they are taken arbitrarily by one parent from their settled environment and moved to another country for the sake of finding there a supposedly more sympathetic forum or a more congenial base. The expression 'rights of custody' when used in the Convention therefore needs to be construed in the sense that  will  best  accord  with  that objective.  In  most  cases,  that  will involve giving the term the widest sense possible.

His judgment continued:

There  is  no  difficulty  about  giving  a  broad  connotation  to  the  word

‘custody’. Attention was drawn by Lord Donaldson in Re C to the width of its dictionary meaning, and by Sachs LJ in Hewer v Bryant [1970] 1 QB 357

at p 373 to the diversity of the ‘bundle of rights’ which it incorporates in

legal terminology. The same is no doubt true of the word ‘garde’, which (in the phrase ‘droit de garde’) provides the translation for ‘rights of custody’ in the French language version of the Convention.

The difficulty lies in fixing the limits of the concept of ‘rights’. Is it to be confined to what lawyers would instantly recognise as established rights – that is to say those which are propounded by law or conferred by court order: or is it capable of being applied in a Convention context to describe the inchoate rights of those who are carrying out duties and enjoying privileges of  a  custodial  or  parental  character  which,  though  not  yet  formally recognised or granted by law, a court would nevertheless be likely to uphold in the interests of the child concerned?

The answer to that question must, in my judgment, depend upon the circumstances of each case. If, before the child’s abduction, the aggrieved parent  was exercising functions  in the  requesting State  of a  parental  or custodial nature without the benefit of any court order or official custodial status, it must in every case be a question for the courts of the requested State to determine whether those functions fall to be regarded as ‘rights of custody’ within the terms of the Convention. At one end of the scale is (for example) a transient cohabitee of the sole legal custodian whose status and functions would unlikely be to be regarded as qualifying for recognition as carrying Convention rights. The opposite would be true, at the other end of the scale, of a relative or friend who has assumed the role of a substitute parent in place of the legal custodian.

When that approach is applied to the particular circumstances of the present case, the answer reached by the judge was in my judgment unimpeachable. The father who saw off this young boy at Perth airport on 25 August 1993 was  the  child’s  primary carer,  sharing his upbringing with the  maternal grandmother as his secondary carer. It was a settled status which the absent mother, as the only parent with official custodial rights, had at first tacitly

and later (by her acceptance of the father’s right to insist on her signature of the minutes) expressly approved. I accept Mr Holman’s submission that it was a status to which any court, including the FCWA, would be bound to uphold; at least to the point of refusing to allow it to be disturbed – abruptly or without due opportunity of a consideration of the claims of the child’s welfare – merely at the dictate of a sudden reassertion by the mother of her official rights. It was a status which falls properly to be regarded as carrying with it rights in the Convention sense,  beach  of  which by unauthorised removal would be rendered wrongful within the terms of Arts 3 and 5.

[187]   That reasoning was followed by Cazalet J  in Re O (Abduction: Custody Rights) [1997] 2 FLR 702. There the grandmother and the mother were German nationals who lived in Germany with the child. The mother left her parents’ home and they assumed responsibility for her care. After the regime had been in effect for over a year, the mother then removed the child to England. In proceedings by the grandparents for return of the child the Judge determined that they held joint custodial rights and made the order sought. The Judge distinguished In re J on the basis that there the mother, while living with the father, had primary care for the child; in Re O, apart from short periods of contact, the mother was off the scene.

[188]   It is however by no means clear how Cazalet J reached the factual conclusion on which he distinguished In re J.  The salient passage in Lord Brandon’s judgment in In re J at 577 F-H reads:

Having regard to the terms of article 3 the removal could only be wrongful if it was in breach of rights of custody attributed to, i.e. possessed by, the father at the time when it took place. It seems to me, however, that since section 35 of the Family Law Act 1975-1979, as amended of Western Australia gave the mother alone the custody and guardianship of J., and no order of a court to the contrary had been obtained by the father before the removal took place, the father had no custody rights relating to J. of which the removal of J. by the mother could be a breach. It is no doubt true that, while the mother and father were living together with J. in their jointly owned home in Western Australia, the de facto custody of J. was exercised by them jointly. So far as legal rights of custody are concerned, however, these belonged to the mother alone, and included in those rights was the right to decide where J. should reside.

[189]   In Re C  (Child  Abduction) (Unmarried  father:  rights  of  custody) [2003]

1 FLR 252 Munby J, who described himself as the unsuccessful counsel in Re B, held that In re J rather than Re B should be applied and declined to follow Re B. While neither In re B, In re F nor Re O was cited in In re D, it is inconceivable that Baroness Hale as the author of Re W was unaware of it.

[190]   I have noted that in Re W  Hale J had adopted a discriminating approach: it would be a wrong within the Convention for a  mother to remove a child from the jurisdiction if:

(a) the mother had parental responsibility by agreement or court order; or

(b)(applying Re B to that extent), he was the primary caregiver and the mother had delegated such care to him;

even though there was nothing in English domestic law prohibiting such removal.

[191]   Her Ladyship did not state how she would have characterised the case where the mother has delegated primary care to be shared jointly to the father and herself. But as argued above, in principle that must entail the exercise of the mother’s legal power, once acted upon, to create a regime “having legal effect”.

[192]   Faced with  an  inconsistency between  what  in  my respectful  view  is  the principled and practical Re W line of authority and In re J, which appears to have been followed in Re D in terms of precedent rather than analysis, I prefer that this Court should adhere to its approach in Gross v Boda and apply the Re W line of authority.

[193]   The Re W jurisprudence was not raised by counsel in MW v Director-General of the Department of Community Services.  As a court of high international standing, as the final court of our close neighbour, and also potentially the ultimate decision maker in this case, its opinion in relation to question (2) requires most careful consideration, not least when it coincides with that of the House of Lords. At first sight  its  decision  is  supportive  of  the  mother’s  case.     But  since  the  Re  W jurisprudence was never argued before the High Court of Australia it is not to be taken to have pronounced upon it: CSR Ltd v Eddy (2005) 226 CLR 1 at [13].

[194]   It will be the task of the Australian courts to form their own opinion on these issues.  That does not relieve this Court from its task under s 111 (read in the light of

art 15) to express its own opinion on what is a disputed and difficult question of international law.

[195]   Were we to examine the issues through a 1980 lens it could well be necessary for us to hold, as did the Full Court of the High Court in this case, that there was no “agreement having legal effect” in favour of the father who therefore lacked custody rights for Convention purposes and that as a statement of international law Gross v Boda should no longer be followed.

[196]   I have however concluded that, with the revolution in family relationships since that time, art 32 of the Vienna Convention requires what in current conditions is now the more realistic view, as was anticipated by Gross v Boda: that a father who shares the care of a child equally with the mother, with her agreement, has joint rights  of  custody which  entitle  him  to  apply for  relief  under  Chapter  3  of  the Convention if the mother secretly removes the child.

[197] That conclusion follows from the increasing realisation, reflected in the Australian statute, that the interests of the child ultimately underlie the Convention. Those presumptively include access to both parents, which ex hypothesi cannot be achieved if one removes the child from settled day-to-day care of the child; and that such day-to-day care with the consent of the mother gives rise to interests on the part of the child that are to be characterised as “rights of custody” in the father within the meaning of the Convention.

[198]     While  the  father’s  registration  on  the  birth  certificate  is  immaterial  for purposes of New Zealand domestic law, like the operative agreement that he have equal care of the child, it is a further pointer, for purposes of classification of his rights at international law, to greater rights than of mere entitlement to access.

Result I would have given

[199]   I  would  allow  the  appeal  and  determine  that  the  child’s  removal  from New Zealand was unlawful in terms both of New Zealand domestic law and of the Convention.

Solicitors:

Pippa Colman & Associates, Maroochydole, Queensland, for Respondent