Fairfax v Ireton HC Auckland CIV 2008-404-004279
[2008] NZHC 1834
•24 November 2008
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SUBJECT TO RESTRICTIONS CONTAINED IN S139(1) OF THE CARE OF CHILDREN ACT 2004. JUDGMENT TO BE CALLED AND CITED AS FAIRFAX V IRETON AS PER [124]
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2008-404-004279
IN THE MATTER OF the Care of Children Act 2004 Part 2
Subpart 4, and the Hague Convention
BETWEEN FAIRFAX Applicant
ANDIRETON Respondent
Hearing: 17 October 2008
Appearances: E B Parsons and A E Ashmore for the Applicant
GKW Page SC for the Respondent
Judgment: 24 November 2008
JUDGMENT OF THE COURT
This judgment was delivered by me on 24 November 2008 at 10.30 am, pursuant to Rule 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………
Counsel/Solicitors:
E Parsons, Barrister, P O Box 46 318, Herne Bay, Auckland 1001 Email: [email protected]
GKW Page SC, 95 North Quay, Brisbane, QLD 4000
Email: [email protected] Fax: 0061 7 3236 2870
FAIRFAX V IRETON HC AK CIV 2008-404-004279 24 November 2008
CONTENTS
Paragraph
High Court Involvement 1 The Family Background 5 The Convention, Australian Proceedings, and the Request 11 New Zealand Law; New Zealand and the Convention; Guardianship and Custody Rights 19
Convention overview
19
Orders for return and rights of custody
25
Guardianship
34
Guardianship rights of unmarried parents
41
De facto relationships and COCA
48
Position of father who is not a guardian. Does he have inchoate rights which fall inside the ambit of Article 5a rights of custody?
54
New Zealand and UK authorities
62
What is the current effect of Dellabarca v Christie?
89
Conclusion on Dellabarca v Christie
105
Parental agreements
110
Article 15 Determination
112
Result
119
Costs and Other Matters
120
High Court Involvement
[1] This proceeding arises out of the removal of the parties’ son by the mother from New Zealand to Queensland without the father’s knowledge or consent.
[2] The provisions of the Hague Convention on the Civil Aspects of International Child Abduction (Convention), to which New Zealand and Australia are signatories, were invoked by the father.
[3] In June 2008 the Attorney-General’s Department of the Australian Federal
Government, which is Australia’s Central Authority, made a Request under Article
15 of the Convention to New Zealand’s Central Authority, the Ministry of Justice. We shall shortly examine the details of that Request.
[4] Counsel for the father filed an application to implement the Request in the North Shore Family Court. The Family Court Judge, rightly perceiving that aspects of the Request raised complex issues, ordered removal of the proceeding into this Court. The Auckland Civil List Judge directed the case was to be heard before a Bench of two judges.
The Family Background
[5] Because the evidence (being affidavits filed in the Family Court of Australia at Brisbane by the parties) conflicts in certain crucial areas, and because this Court has no role to play in those factual determinations, our recital of relevant background facts will be brief and circumspect.
[6] The parties’ son was born in New Zealand in September 1996 and is now aged 12. The names of both his parents appear on his birth certificate. The child uses his father’s surname.
[7] The parties have never married. They began associating with each other and started a sexual relationship in approximately 1992. There is conflicting evidence
from the parties and other deponents on the issue of whether the parties were cohabiting or living together as de facto partners at the time of the child’s birth in September 1996. There is no contest, however, that the couple lived together in their own home from November 1996, approximately two months after the child’s birth, until late 1999/early 2000 when they separated.
[8] The parties’ relationship appears to have been difficult and tempestuous both before and after their separation. Contact between the child and his father was maintained after the separation. The regularity, frequency, and quality of that contact is difficult to discern. However, a Family Report dated 9 May 2008 before the Family Court of Australia makes it clear that there were positive aspects of the father/son relationship. The child would like ongoing contact with his father.
[9] Up to the time of the child’s removal from New Zealand no orders affecting him had ever been made in the Family Court. However, between March and May
2007, as a result of a referral under s 9 of the Family Proceedings Act 1980, the parties had sessions with a court appointed counsellor. The counselling included seven joint sessions. The outcome of the counselling was a parenting plan which included details of contact between the child and his father. The provisions of the parenting plan, however, were never embodied in court orders.
[10] In February 2008 the mother and child flew to Brisbane. They continue to live in Queensland. The father has had no contact with his son since.
The Convention, Australian Proceedings, and the Request
[11] The father invoked the provisions of the Convention and, through New Zealand’s Central Authority, seeks an order for the return of the child to New Zealand. It is his contention that New Zealand was, at the time of his son’s removal in February 2008, the country of the child’s habitual residence. Thus the proper forum to resolve disputes over the child is the New Zealand Family Court.
[12] An application seeking the child’s return was filed in the Family Court of
Australia at Brisbane on 10 March 2008. Various directions were made by Justice
O’Reilly on 24 April 2008. A Family Report was directed and has been filed. The parties have filed a number of affidavits.
[13] On 19 June 2008 the Australian Central Authority sent an Article 15 Request to the New Zealand Central Authority. Article 15 of the Convention provides:
Article 15
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.
[14] Parliament has implemented New Zealand’s international law obligations so far as the Convention is concerned by enacting Subpart 4 of Part 2 of the Care of Children Act 2004 (COCA). The Convention itself is set out in Schedule 1 of the Act. Section 111 relates to Article 15 requests by providing:
111 Request for declaration that child wrongfully removed
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.
[15] The Australian Central Authority’s 19 June Request was relayed to the New Zealand Central Authority which then filed an application in the North Shore Family Court.
[16] The Australian Central Authority’s Request relevantly states:
I request under Article 15 of the Convention that you apply to the courts in New Zealand for determination that the removal of [the child] 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 the guardian of [the child] 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 [the child] was born, in accordance with s 17(3)(b) of the Care of Children Act 2004 (NZ).
[17] The third of the above issues, whether the parties were living together as de facto partners at the time of the child’s birth, is not an issue this Court will determine. The parties’ affidavits filed in the Family Court of Australia conflict on this. The issue is a factual matter to be decided, not by us, but by the Australian court. Counsel both agreed this was so.
[18] To a large extent, however, the three issues contained in the Request overlap and are interlinked. A factual finding on the issue of whether the child’s parents were living together as de facto partners at the time of his birth will produce the answer to the other two issues; whether the father is the child’s guardian, and whether he has custody rights under New Zealand law.
New Zealand Law; New Zealand and the Convention; Guardianship and
Custody Rights
Convention overview
[19] The House of Lords in In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 provided a useful overview of the Convention’s approach. Baroness Hale stated:
24 The world would be a simpler place if the Convention had provided that all removal or retention of a child outside the country where he or she is habitually resident without the consent of the other parent or the authority of a court is wrongful. But it does not. The Convention recognises that not all parents have the right to demand the automatic return of children who have been taken away without their consent. It does so by providing that the removal or retention of a child is only wrongful under article 3 if 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." These rights may arise "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." In addition, those rights must actually have been being exercised at the time (or would have been had it not been for the wrongful removal). Article 5(a) provides that "'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".
[20] At this point we crystallise what is a central premise of any Article 15 declaration: the inquiry is whether domestic law rights fall within the Convention definition of “rights of custody.” It does not matter how those rights are locally described. The first question then, to use Baroness Hale’s formulation in In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 at [39], will be: what rights does a person have under the law of the state of the child’s habitual residence? The second is: are those domestic rights “rights of custody” within the meaning of the Convention?
[21] The distinction between rights of custody and rights of access is a central and clear principle of the Convention. The Article 3 grounds for a wrongful removal or retention will only be established where rights of custody are breached. Rights of access will not suffice. The Convention provides elsewhere for upholding rights of access (Article 21). The Preamble too supports this distinction.
[22] In the Explanatory Report on the 1980 Hague Child Abduction Convention, Elisa Pérez-Vera states:
As for what could be termed the juridical element present in these situations, the Convention is intended to defend those relationships which are already protected, at any rate by virtue of an apparent right to custody in the State of the child’s habitual residence, i.e., by virtue of the law of the State where the child’s relationships developed prior to its removal. The foregoing remark requires further explanation in two respects. The first point to be considered concerns the law, a breach of which determines whether a removal or retention is wrongful, in the Convention sense. As we have just said, this is a matter of custody rights. Although the problems which can arise from a breach of access rights, especially where the child is taken abroad by its custodian, were raised during the Fourteenth Session, the majority view was that such situations could not be put in the same category as the wrongful removals which it is sought to prevent.
…
A questionable result would have been attained had the application of the Convention, by granting the same degree of protection to custody and access rights, led ultimately to the substitution of the holders of one type of right by those who held the other. [at p 444 – 445]
[23] The authors of International Movement of Children: Law Practice and Procedure (Everall QC, Lowe, Nicholls, Jordan Publishing Ltd, Bristol, 2004) similarly write:
Although the drafters of the Convention favoured a broad and purposive interpretation of the concept of ‘rights of custody’, it is clear that the Convention differentiates sharply between rights of custody and rights of access, and that this distinction should be preserved. [at p 260]
[24] This dichotomy is upheld in most authorities, as we shall see. Convention access rights are weak. At best an access parent remaining in the state of the child’s habitual residence can obtain orders in the state to which the child has been removed securing that parent’s access or contact rights. Convention “rights of custody”, however, are powerful rights which require the return of the child to the state of his or her habitual residence at the behest of the parent exercising them.
Orders for return and rights of custody
[25] As we have said (supra [18]) the Australian Central Authority’s three questions are interlinked. The Australian Family Court’s factual findings will be crucial to the outcome.
[26] This section of our judgment will examine New Zealand law which, as the law of the state of the child’s habitual residence, will determine whether or not the father has “rights of custody” under the Convention. That inquiry will focus on whether or not the father was the child’s guardian at the critical time of the removal to Australia.
[27] We shall then examine whether, if the father is not the child’s guardian, he nonetheless has Convention “rights of custody” which rights, if they exist, have been classified or categorised by counsel as “inchoate” rights. It is in this area that arguably New Zealand’s law is at odds with the jurisprudence of other Convention signatories. This issue is to a large extent encompassed by the observation of Baroness Hale in In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 in which (at [26] and [29]) she stated that the central issue is usually whether rights possessed under the law of the “home country” by the parent who does not have the
child’s day to day care amount to rights of custody, this rightly being seen as the
“problem” of characterisation of the other parent’s rights.
[28] Under the Convention a child’s removal or retention will be wrongful, and will found jurisdiction to order the return of the child to the state of his or her habitual residence, if the removal or retention is in breach of rights of custody. The Convention policy is clearly set out in Article 3:
Article 3
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.
[29] The Convention defines custody in Article 5a:
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;
…
[30] Parliament has enacted legislation to mirror these Articles. Jurisdiction for the Family Court to make an order for return (the obligation being a mandatory one unless there are grounds for giving the court a discretion to refuse an order under s 106) is found in s 105 of COCA:
105 Application to Court for return of child abducted to New
Zealand
(1) An application for an order for the return of a child may be made to a Court having jurisdiction under this subpart by, or on behalf of, a person who claims—
(a) that the child is present in New Zealand; and
(b)that the child was removed from another Contracting State in breach of that person's rights of custody in respect of the child; and
(c)that at the time of that removal those rights of custody were actually being exercised by that person, or would have been so exercised but for the removal; and
(d) that the child was habitually resident in that other
Contracting State immediately before the removal.
(2) Subject to section 106, a Court must make an order that the child in respect of whom the application is made be returned promptly to the person or country specified in the order if—
(a) an application under subsection (1) is made to the Court; and
(b)the Court is satisfied that the grounds of the application are made out.
…
[31] Section 97 defines “rights of custody”. Interestingly the provision does not follow exactly the Article 5a Convention definition (supra [29]) and for some reason deploys the conjunction “and” to separate the Article 5a words into two subsections:
97 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.
[32] Section 97 is the latest in three attempts by New Zealand’s Parliament to enact the international law obligation enshrined in Article 5a. Previous attempts and
subtle differences have understandably excited judicial comment. (See Gross v Boda [1995] 1 NZLR 569, 574; Chief Executive of the Department for Courts v Phelps [2000] 1 NZLR 168 at [12].) An historical analysis is unnecessary. We agree with the observation made by B D Inglis QC in his New Zealand Family Law in the 21st Century (Thompson Brookers Wellington, 2007) at p 563:
While it would be easy to read section 97 as if it were listing two particular classes of “right” which must be cumulatively present (but not excluding the relevant presence of others) in determining whether “rights of custody” exist, that is not what in fact the section says…. The intention … seems to acknowledge an anxiety that right (b), if in a particular case it exists as part of the rights in (a), should not be overlooked. The fact that the legislature, which had in section 4 used the expression “shall include”, has now chosen to use the expression “include” (without the imperative) tends to support that view.
[33] We consider s 97 must be interpreted in conformity with Article 5a. There is nothing to suggest that Parliament, when enacting provisions to give effect to New Zealand’s international law obligations, intended to place any gloss on or modify the Article 5a definition. Furthermore there is ample authority for courts to construe legislation of this type in conformity with international law obligations. As
Professor J Burrows says in Statute Law in New Zealand (3rd Ed, LexisNexis
Wellington, 2003) at p 341:
There is a presumption, which is gaining strength, that Parliament does not intend to legislate contrary to New Zealand’s international obligations.
Dicta to similar effect by the Court of Appeal can be found in Rajan v Minister of Immigration [1996] 3 NZLR 543, 551; New Zealand Airline Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269, 289; and in the gargantuan Ye v Minister of Immigration [2008] NZCA 291 at [84] per Glazebrook J.
Guardianship
[34] COCA replaced and repealed the Guardianship Act 1968. It came into force on 1 July 2005 and was thus operative when the child was removed from New Zealand.
[35] Fundamental to New Zealand’s law governing disputes over children is the concept of guardianship. In less complex days, as provided by s 6 of the Guardianship Act 1968, a child whose parents were married had each parent as a guardian. In general terms, major decisions affecting a child’s welfare and upbringing were to be made by the child’s guardians. If the guardians disagreed, the courts had jurisdiction to resolve the issue as a guardianship dispute, (s 13).
[36] The guardianship concept generally worked well, but problems arose in a number of situations such as the child being a product of a de facto relationship, or indeed of a transitory relationship rather than of a marriage. There were also difficult situations when other adults (such as step-parents, grandparents, near relatives, and wider whanau) did not have guardianship status but were nonetheless involved in a child’s life and welfare.
[37] By enacting COCA, Parliament has defined the concepts of “guardianship” and “guardian” in s 15(a) as encompassing all the duties, powers, rights, and responsibilities a child’s parent has in relation to the child’s upbringing. Those duties, powers, rights, and responsibilities are expanded in s 16(1), which provides:
16 Exercise of guardianship
(1) The duties, powers, rights, and responsibilities of a guardian of a child include (without limitation) the guardian's—
(a) having the role of providing day-to-day care for the child …
and
(b)contributing to the child's intellectual, emotional, physical, social, cultural, and other personal development; and
(c)determining for or with the child, or helping the child to determine, questions about important matters affecting the child.
[38] The “important matters” in respect of which guardians have the power and right to make decisions (s 16(1)(c)) are set out in s 16(2):
(2)Important matters affecting the child include (without limitation)— (a) the child's name (and any changes to it); and
(b)changes to the child's place of residence (including, without limitation, changes of that kind arising from travel by the child) that may affect the child's relationship with his or her parents and guardians; and
(c) medical treatment for the child (if that medical treatment is not routine in nature); and
(d) where, and how, the child is to be educated; and
(e)the child's culture, language, and religious denomination and practice.
[39] The s 16(2)(b) important matter of a change to a child’s place of residence (and there can be no argument a change of residence from one country to another will “affect the child’s relationship with his or her parents and guardians”), provides the critical link between the rights of a guardian under New Zealand law and the Article 5a “rights of custody” definition. Article 5a covers not only the right to care for a child (consistent with the s 16(1)(a) guardianship power and right) but importantly includes the right to determine the child’s place of residence.
[40] This analysis accords with the approach New Zealand courts have taken in Convention cases. (See generally Gross v Boda [1995] 1 NZLR 569; Dellabarca v Christie [1999] 2 NZLR 548, 555). It is also consistent with the approach taken by courts of other signatory states (for example C v C (Abduction: Rights of Custody) [1989] 2 All ER 465; MW v Director-General of the Department of Community Services [2008] HCA 12 at 151 per Kirby J). It reflects the policy of the Convention. It was common ground between counsel that the rights of guardians of a New Zealand child fell within the Convention Article 5a “rights of custody”.
Guardianship rights of unmarried parents
[41] The central question here is thus whether the father was the guardian of the child when his son was removed to Australia in February 2008.
[42] COCA has changed the substantive law in this area. Section 17 relevantly provides:
17 Child's father and mother usually joint guardians
(1) The father and the mother of a child are guardians jointly of the child unless the child's mother is the sole guardian of the child because of subsection (2) or subsection (3).
(2) If a child is conceived on or after the commencement of this Act, the child's mother is the sole guardian of the child if the mother was neither—
(a) married to, or in a civil union with, the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; nor
(b)living with the father of the child as a de facto partner at any time during that period.
(3) If a child is conceived before the commencement of this Act, the child's mother is the sole guardian of the child if the mother was neither—
(a) married to, or in a civil union with, the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; nor
(b)living with the father of the child as a de facto partner at the time the child was born.
[43] Interestingly, s 18 stipulates that a child’s father who is not a guardian by virtue of ss 17(2) or (3) becomes a guardian of the child if his particulars are registered after COCA came into force (1 July 2005) as part of the child’s birth information on the birth certificate. The father here cannot claim any benefit from this provision, despite the fact that his name is on the child’s birth certificate, and indeed the child bears his surname, because such registration took place eight years before s 18 was enacted.
[44] The guardianship status rules enacted by s 17 are clear.
• A child’s father and mother are joint guardians;
•There is no joint guardianship if the child’s mother is sole guardian by virtue of sub-sections (2) or (3);
•In the case of a child conceived on or after 1 July 2005 the mother will be the sole guardian if she and the father were not married, in a civil union, or de
facto partners at any time during the period from the date of conception to the date of the child’s birth;
•If the child was conceived before 1 July 2005 the mother will be the sole guardian if she was not married to or in a civil union with the father at any time during the period running from the child’s conception to birth and was not living with the father as a de facto partner at the time of the child’s birth.
[45] The s 17(3) provision applies to the parties here. It is more restrictive than the s 17(2) provision. The parties were not married at any time during the period from the child’s conception to his birth in September 1996. Whether or not the parties were living together as de facto partners when the child was born is a contested factual matter to be resolved by the Family Court of Australia.
[46] Were the Australian Court to find that at the date of the child’s birth the parties were indeed living together as de facto partners, then the father, ipso facto, would be one of the child’s guardians by virtue of s 17(1). The mother, in that situation, could not claim to be his sole guardian.
[47] If the Australian Court were to reach a contrary decision, that the parties were not living together as de facto partners at the time of the child’s birth, then, by virtue of s 17(3), the mother would be the child’s sole guardian and the father, under New Zealand law, would not be one of the child’s guardians.
De facto relationships and COCA
[48] In terms of s 29 of the Interpretation Act 1999, “de facto partner” for the purposes of s 17(3) of COCA (and indeed all enactments) is simply defined as a person who is a party to a de facto relationship. Such a relationship is defined broadly, it ultimately being a factual matter, by s 29A(1):
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.
…
(3) In determining whether 2 people live together as a couple in a relationship in the nature of marriage or civil union, the court or person required to determine the question must have regard to—
(a)the context, or the purpose of the law, in which the question is to be determined; and
(b) all the circumstances of the relationship.
[49] It is significant that the definition of a de facto relationship (and a de facto partner) for COCA purposes is cast in arguably broader and less specific terms than “de facto partner” and “de facto relationship” are defined in ss 2C and 2D of the Property (Relationships) Act 1976. As a matter of interpretation it would be wrong to carry across the s 2D(2) factors of the latter statute into COCA. The purposes of the two statutes are different. Section 29A(3)(a) requires a court to have regard to the context or purpose of the law in which the question is to be determined. (See also Ruka v Department of Social Welfare [1997] 1 NZLR 154, 162 per Blanchard J). Whether or not a parent is a de facto partner under COCA is highly relevant to the issue of the status of the child. A de facto relationship under the Property (Relationships) Act 1976 is the starting point of a different inquiry: to determine whether or not an unmarried couple can invoke the inchoate rights conferred by that Act. That said, however, factors such as those listed in s 2D(2) of the Property (Relationships) Act 1976, and perhaps others, must have some relevance to focus what is essentially a factual inquiry.
[50] Re-enforcing this interpretative approach, after its enactment but before it came into force, COCA was amended by repealing ss 9 and 10 which, in their original form, defined “de facto partner” and “de facto relationship” in an almost identical fashion to s 2D(2) (of the Property (Relationships) Act 1976).
[51] Interestingly, the High Court of Australia recently turned its mind to the
COCA test of a de facto relationship in M W v Director-General of the Department
of Community Services [2008] HCA 12. The High Court was dealing with an appeal from the Family Court of Australia, the majority of which had suggested that in the light of the s 3(1) COCA purpose of promoting children’s welfare, a court should adopt a “relatively low threshold” for finding a de facto relationship. Kirby J, in a minority judgment ([195] and [196]) appears to have approved this approach. The High Court of Australia majority (Gummow, Heydon, and Crennan JJ) did not substantively comment on this aspect.
[52] The extent to which, if at all, the Family Court of Australia in Brisbane is bound by these observations is entirely a matter for it. We are not bound by the High Court of Australia’s comments on New Zealand law although we of course accord them respect. In a family law context de facto relationships are a recognised phenomenon. Such a relationship will either exist or not exist at a critical point of time. Unlike marriages the start point of a de facto relationship is often difficult to pinpoint (see Foster (dec’d), Re; Benseman v Ball [2007] NZFLR 127). The focus of s 17 of COCA is an inquiry into a de facto relationship where the overarching purpose is a child’s welfare. The New Zealand approach must be to apply the s 29A definition with this purpose in mind.
[53] A difficulty in this case will clearly arise if the Family Court of Australia decides that the parties were not de facto partners at the time of their child’s birth. If that is the Court’s decision, does the father nonetheless have rights of custody under Article 5a? We turn now to that issue.
Position of father who is not a guardian. Does he have inchoate rights which fall inside the ambit of Article 5a rights of custody?
[54] Were the Family Court of Australia to resolve the factual dispute in favour of the mother and thus determine that the mother was the child’s sole guardian in terms of s 17(3), counsel for the father submits he still has inchoate guardianship rights which Article 5a encompasses.
[55] Ms Parsons relied on New Zealand authorities, which we discuss later. She submitted that the father’s name on the birth certificate, the history of contact
between him and his son, and the parenting arrangements agreed during counselling (supra [9]) all combined to ensure that the father had the necessary status under the Convention.
[56] As a matter of policy, counsel submitted the Convention was designed (as stated in its preamble) to protect children internationally from the harmful effects of wrongful removal or retention and to ensure their prompt return to the state of their habitual residence. The fact that the father might not be the child’s guardian at law should not be elevated into a pretext to prevent Convention remedies from applying in this case. The child’s removal, the ousting of the jurisdiction of the courts of New Zealand where the child habitually resided, and the potential harmful effects on the child, gave rise to the same policy issues as a wrongful removal of a child where there is no dispute over a parent’s guardianship.
[57] Mr Page SC disputed these submissions. He pointed to the heading to s 13 of COCA that the Act was a code. The mother, when she removed the child, was entitled to rely on the statutory provisions which, in his submission, made her the sole guardian. Recognition of inchoate rights and reading down s 17 would be inconsistent with both the Act and natural justice considerations. Indeed, the whole concept of inchoate rights was too vague and an anathema to the Convention itself.
[58] The purpose of s 13, as s 13(1) makes clear, (there was a similar provision in the Guardianship Act 1968, s 33), is to stipulate that the statutory provisions replace previous common law and equity rules relating to custody and guardianship of children. This Court’s inherent and parens patriae powers, however, are retained (s13 (2)). We do not consider that the fact that COCA is a code in this sense provides a shield to a parent who may be oblivious to or not have considered the manner in which statutory provisions have been interpreted or might be applied.
[59] Both counsel are correct in classifying the rights of a father who is not a guardian as inchoate. The father here had a number of rights, none of which he had exercised at the time of the child’s removal. As the father of the child (s 17(1)), whose name appeared on the birth certificate, he could have obtained an order declaring that he was a guardian under s 20. Other adults (it not being necessary to
develop this theme) are permitted to apply for appointment as additional guardians of children under ss 21 and 23. In dealing with such applications, of course, the Family Court has to consider the child’s welfare and best interests as its first and paramount consideration (ss 4 and 5).
[60] Hypothetically on the facts of this case, had the mother told the father a few days before her departure for Australia what her intentions were (parents planning to abduct children will seldom do this), we have no doubt the father would have been able to apply ex parte to be appointed an interim guardian, thereby obtaining the necessary status to obtain an order under s 77 preventing the child’s removal from New Zealand.
[61] The father also had available options under s 40 of COCA. The purpose of that provision (s 39) is to encourage both parents and guardians to agree on their own arrangements for a child’s care, development, and upbringing. Section 40 would have allowed the father to seek to have the terms of the parenting agreement achieved during the March-May 2007 counselling embodied in a court order (s 40(1)(b)). Such orders can be enforced under s 40(4). This did not occur.
New Zealand and UK authorities
[62] One Family Court judgment, Anderson v Paterson [2002] NZFLR 641, gave Convention “rights of custody” an expansive interpretation in a case involving a non- guardian father. Judge Bisphan focused on the substance of the parent/child relationship rather than its form, and was also alert to an informal agreement, although in that regard the Judge seems to have differed from the Court of Appeal’s conclusion in Dellabarca v Christie [1999] 2 NZLR 548 (infra). In particular the Judge, as a matter of policy, took the view that a non-guardian parent should not occupy an inferior position to a guardian in the contemporary world. The Judge saw such a distinction as a nicety “not necessarily” relevant to a child’s welfare. He stated at 645:
But, why should a non-guardian father be in an inferior position to a father who is a guardian, even a married one? Apart from the fact that it is in the statute, what is so significant about living together as husband and wife at
the time of the child's birth? The notion harks back to a time when marriage was seen as the ideal -- living together at the birth was the next best option. I fail to understand its current significance. It is not necessarily a matter which enhances the welfare of the child and I doubt whether the Convention would be concerned with such a nicety. What surely is important is the relationship between the "non-custodial parent" and the child after birth and as the child is growing up.
The notional concept of "guardianship" is not necessarily determinative. What is necessary is the existence of a right or rights of custody and the actual exercise of such rights. If a right can be defined as an interest or expectation guaranteed by law the touchstone is enforceability. That is implicit in art 3 of the Convention which describes how rights of custody may arise; certainly the ones specifically referred to are all legally enforceable.
If a non-guardian father is actually exercising rights of custody by caring for a child it seems paradoxical to say that he has no rights of custody; if he has no rights he can hardly be exercising them.
[63] The Judge accepted (at 646) that his finding ran “counter to what is implicit in Dellabarca v Christie”. He also referred to a dictum of Waite J in Re B (A Minor) (Abduction) [1994] 2 FLR 249, 260 to the effect that the purpose of the Hague Convention was in part humanitarian, to spare children already suffering the effects of their parents’ relationship breakdown from further disruption flowing from an arbitrary change of country.
[64] Anderson v Paterson is not of course binding on this Court although it was referred to with some approval in M v H, to which we now turn.
[65] The strongest authority supporting Ms Parsons’ submission on the father’s inchoate rights is M v H [2006] NZFLR 623, a judgment of this Court comprising, like us, a Full Bench.
[66] Panckhurst and Chisholm JJ had before them an appeal from a Family Court Judge. The Family Division of the English High Court of Justice had sought a declaration as to whether the removal of the parties’ son from New Zealand was wrongful within the meanings of Articles 3, 5, and 15 of the Convention.
[67] The father was not a guardian of the child. His son had been conceived during a relationship which had ended some eight months before the child’s birth.
[68] There was what was described as “ongoing contact between father and son” for four years and ten months after the child’s birth. As here, the father was recorded as such on the child’s birth certificate. The mother removed the child from Christchurch to London two days after she had failed to deliver her son to the father for agreed access contact.
[69] The High Court adopted the Family Court’s summary of contact between father and son. This contact was difficult at times, but had progressed from three afternoons per week to a week day evening and Sunday afternoons.
[70] The High Court considered Articles 3 and 5, the “rights of custody” definition contained in s 4 of the Guardianship Amendment Act 1991, and reviewed the case law and in particular the Court of Appeal judgments in Gross v Boda [1995]
1 NZLR 569 and Dellabarca v Christie [1999] 2 NZLR 548. It also referred to Anderson v Paterson [2002] NZFLR 641, the decision of Judge Bisphan (supra [62]). On the basis of those authorities the Court considered “rights of custody” were to be given a broad meaning (at [18]).
[71] On the issue of whether the father had rights of custody, the High Court held he did:
[20] In terms of the test adopted in New Zealand did Mr Hunter have rights of custody? We consider that he did. His access to his son did not extend to overnight care of the child. On the other hand, over a period of some years Mr Hunter exercised regular access to his son on either three or two days of each week and for periods of some hours. There was always a defined and committed relationship between the two. This, we consider, constituted substantial intermittent possession and care of the child.
[21] For these reasons we are not persuaded that the Family Court Judge erred in reaching the conclusion that Mr Hunter enjoyed rights of custody at the time of his son’s removal from New Zealand. There was no issue as to the exercise of those rights in the period immediately before the removal. Indeed, Mr Hunter only became aware of the removal because access arrangements were not adhered to a day or two after his son left the country. The evidence both confirmed the existence of a well-defined access regime and that it was one which was operative and ongoing.
[72] The High Court went on to consider whether the access arrangements between the parties constituted an agreement having legal effect. This limb of the decision had as its starting point Article 3 (supra [28]) and in particular whether there
was an agreement having legal effect under New Zealand law. This inquiry included an examination of s 18 of the now repealed Guardianship Act 1968.
[73] The Court also considered the concept of inchoate rights:
[24] Ms Parsons claimed that the oral agreement in this case does not amount to an agreement for the purposes of s18 and that in this respect the situation is analogous to Dellabarca v Christie where the Court of Appeal upheld the High Court finding that there was no agreement “having legal effect”. She argued that even if the agreement in this case was “valid” for the purposes of s18 that would not be enough because it would only provide the applicant with inchoate rights of access, not existing rights “having legal effect”. Counsel emphasised that there is a contradistinction between valid inchoate rights and rights that are enforceable. In this case, she submitted, the applicant's inchoate rights could only have legal effect for the purposes of the Convention once they became enforceable by formal court order.
….
[29] Judge Costigan rejected the contention that because an agreement was oral it did not have legal effect. She noted:
It is not uncommon for parents to rely on an oral agreement as to the parenting and care of their children. To suggest that a breach of that agreement by one parent in removing the children from the country would leave the parent without a remedy where the agreement has been both relied on and acted on (but not committed to writing) does not accord with the provisions of s 18, Guardianship Act 1968, the background to which was referred to in Dellabarca v Christie.
On this basis the Judge was satisfied that the oral agreement was one having legal effect under New Zealand law. In this regard she noted evidence that Ms Murrow telephoned Mr Hunter a few days after her arrival in London to explain her whereabouts, an action which the Judge described (rightly in our view) as a clear acknowledgement of the agreement between the parties.
[30] We agree with both the conclusion, and reasoning of the Family Court Judge. Section 18 of the Guardianship Act does not require that agreements providing for the care of children must be in written form, although that is unquestionably a prudent safeguard. We think it would be wrong to hold that the significant number of parents who through the exercise of judgment and commonsense agree about care arrangements on an informal oral basis do not thereby conclude an agreement in terms of s 18. Provided there is proper evidence to establish the nature of such arrangements, and evidence to show that the relevant rights of custody were being exercised at the time of removal, then we agree that the existence of an agreement having legal effect is made out.
[74] Thus the High Court, on appeal, considered the Family Court Judge had been correct in holding the father had rights of custody. The appeal was dismissed.
[75] This conclusion, however, was not followed and was indeed criticised by the English courts dealing with the same abduction in England. The English Court of Appeal’s treatment of the issue is found in Hunter v Murrow [2005] 2 FLR 1119; [2005] EWCA Civ 976. The Court expressly disagreed with the conclusion reached by the New Zealand High Court about the father’s rights of custody. Furthermore, it noted that such an interpretation did not seem to have been adopted by the courts of other Convention signatories. This disapproval is re-enforced by the subsequent judgment of the House of Lords in In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 that an Article 15 decision should be determinative unless clearly out of line with international understanding of the Convention’s terms.
[76] It is vital to appreciate that the English Court of Appeal was concerned to preserve the distinction the Convention draws between rights of custody and rights of access. The undisputed rights of custody which New Zealand law gives to the guardians of children was not an issue in Hunter v Murrow, quite simply because the father did not have guardianship status.
[77] These comments were made by Lord Justice Thorpe, an English Judge greatly experienced and respected in family law matters:
17 Thus the decision of the Family Court determining whether or not the removal of Xavier had been wrongful required the application to the agreed facts of Section 4 of the Act rather than Articles 3 and 5. The desirable goal of a uniform construction of the Convention amongst all the Contracting States may obviously be impeded by the preference of some States to embark upon a redrafting exercise in the process of implementing the Convention.
18 As to the basis upon which the courts of New Zealand determined the reference in the applicant's favour it is essentially to be found in paragraph 20 of the judgment of the High Court, as follows: --
"In terms of the test adopted in New Zealand did Mr Hunter have rights of custody? We consider that he did. His access to his son did not extend to overnight care of the child. On the other hand, over a period of some years Mr Hunter exercised regular access to his son on either three or two days of each week and for periods of some hours. There was always a defined and committed relationship between the two. This, we consider, constituted substantial intermittent possession and care of the child."
…
21 On the first question the submission of the mother's counsel was that it was essential to maintain a distinction between rights of custody and rights of access. In support of that submission she relied heavily on the authorities in this court. In rejecting her submission the High Court observed: --
"However, the fact remains that the (New Zealand) Court of Appeal has fashioned an approach in this country which may well be different to that in other jurisdictions, but which is nonetheless binding on both the Family Court and this court."
22 That citation brings us to the crux of this case. New Zealand has rejected the approach adopted in this jurisdiction and is ready to categorise simple contact arrangements as constituting "rights of custody". The authorities in this jurisdiction, to which I will shortly refer, do not permit that liberality. Accordingly Mr Justice Singer felt constrained to reject the determination of the New Zealand courts and to hold that, on the construction of Articles 3 and 5 adopted in this jurisdiction, the removal of Xavier had not been wrongful.
…
[78] Nor did it appear to the English Court of Appeal that the High Court’s interpretation of rights of custody was one which had been adopted by the courts of other Convention signatories.
32 … Mr Setright had the opportunity to demonstrate that the New Zealand approach had become general, if not universal, but he produced nothing but responses to a request for information sent by his instructing solicitors to the Central Authorities of the other Contracting States. Although the request was only sent on the 1st June, it is a demonstration of how committed is the international community to collaboration. No less than twenty responses were received and many of them had clearly involved a great deal of effort in their preparation. However Mr Setright was unable to mine any gold from this seam.
…
[79] The English Court of Appeal went on to observe, and we endorse the observation, that the disadvantage under the Convention of a father in this situation will emerge with diminishing frequency.
36 In this jurisdiction as a consequence of Section 111 of the Adoption and Children Act 2002 with effect from 30th December 2003 an unmarried father obtains parental responsibility if he appears as the father on the registration of the child's birth. Similarly in New Zealand Section 18 of the Care of Children Act 2004 achieves the same result from 1st July 2005 for a father whose particulars are registered on the child's birth certificate.
37 Thus with the passage of time the number of fathers who have not acquired parental responsibility by one route or another will be a diminishing
band. Accordingly the distinction carefully drawn in our jurisprudence between ' rights of custody' and 'rights of access' will be of diminishing significance.
38 Where a father does not hold parental responsibility, in determining whether or not he held "rights of custody" at the date of the removal, in my judgment particular regard should be paid to the sharing arrangements then in operation. Nowadays joint residence orders are not uncommon where the division of time between the two parents directed by the court leaves one with what could equally be expressed as contact on alternate weekends and half school holidays and half-terms. Equally there are contact orders which by agreed extension leave the contact parent in possession for a very substantial proportion of the child's monthly calendar.
39 The trend away from the use of labels determinative of rights is mirrored in the New Zealand Care of Children Act 2004 which came into force on the 1st of this month. Part 2 of the Statute deals in its first sub-part with guardianship, responsibility for children and decisions about children.
[80] This analysis, with respect, strikes us as both illuminating and compelling. In particular, a father (as here) who is an undisputed parent of a child but does not have, under the law of the country of the child’s habitual residence, rights of custody or the benefit of some court order is becoming an increasingly rare bird. As we have observed, (supra [43]) the father’s name on his son’s birth certificate will, for future generations of parents who were not living in a de facto relationship, be sufficient to confer guardianship status on the father.
[81] The issue and New Zealand law in this area was examined by the House of Lords in In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 to which we have already referred. The facts of In re D do not need recital. Suffice to say that a Romanian Court had provided an Article 15 Declaration to the effect that a father did not have rights of custody. It is important to note the Court’s discussion of rights of custody was focused on whether the right to veto residence amounted to such rights.
[82] At [35] of her judgment, Baroness Hale stated:
…. [New Zealand] has gone further still and held that rights of access can in themselves amount to “rights of custody”: G v B [1995] NZFLR 49; D v C [1999] NZFLR 97; see also Hunter v Murrow (Abduction: Rights of Custody) [2005] 2 FLR 1119.
[83] With respect, this oversimplifies the New Zealand position. The first New Zealand Court of Appeal authority referred to (G v B) relating to rights of custody is Gross v Boda [1995] 1 NZLR 569. That case, which involved the wrongful removal of a child to New Zealand from Arizona, made it very clear that the left behind American father, in terms of existing court orders in both Arizona and Indiana, clearly enjoyed rights of custody or a right of veto under the relevant American law so far as the child’s place of residence was concerned. Any analysis of New Zealand case law in this area, particularly by foreign courts, must avoid the trap of assuming that because a parent merely has a right of access, rights of custody as understood by Article 5a do not extend to that access parent. As is apparent from the foregoing analysis (supra [34] – [40]) an access parent who has guardianship status clearly qualifies as a holder of rights of custody for Article 5a purposes.
[84] Considering inchoate rights (though not by that name), Baroness Hale stated that elevating a parent’s “potential rights of veto” to “rights of custody” would remove the distinction between rights of custody and of access. At [38] she stated:
38I would not, however, go so far as to say that a parent's potential right of veto could amount to "rights of custody". In other words, if all that the other parent has is the right to go to court and ask for an order about some aspect of the child's upbringing, including relocation abroad, this should not amount to "rights of custody". To hold otherwise would be to remove the distinction between "rights of custody" and "rights of access" altogether. It would be also inconsistent with the decision of this House in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562. There an unmarried father had no parental rights or responsibility unless and until a court gave him some; but he did, of course, have the right to go to court to seek such an order. This was held not to amount to "rights of custody" within the meaning of article 5(a). Nor could a subsequent order grant him such rights if by then the child's habitual residence had been changed.
The distinction between this situation and a New Zealand guardian, of course, is that a guardian’s rights are not “potential”. They are statutory and actual. It is only the non-guardian who has potential rights. (Supra [59] – [61]).
[85] The House of Lords returned to New Zealand law in a different context, that being the central issue before it, namely the rejection by an English court of an Article 15 declaration relating to the Romanian father’s rights of custody. Baroness
Hale was well aware of the Court of Appeal’s then recent decision in Hunter v Murrow. Her comments on New Zealand law, albeit in a slightly different context, are thus of interest. She briefly traversed the history of Hunter v Murrow, asking rhetorically, so far as the rejection of the Romanian Declaration was concerned:
42 How could this have happened? On 28 July 2005, the Court of Appeal handed down its decision in Hunter v Murrow (Abduction: Rights of Custody) [2005] 2 FLR 1119. The English court had made an article 15 request to the New Zealand court concerning a child whose unmarried parents had separated before he was born and had never lived together, although father and child had had considerable contact by informal agreement with the mother. It appears that the father had neither parental responsibility nor rights of veto. Nevertheless, the New Zealand court held that the access which the father had enjoyed by virtue of the agreement with the mother amounted to "rights of custody" for the purpose of the Convention. As the researches of counsel demonstrated, this takes the concept of “rights of custody” further than it has been taken in other common law jurisdictions.
43 The Court of Appeal declined to accept that ruling. But their reasoning is important. They did not challenge the ruling as to the content of the father's rights in New Zealand law. They merely challenged the characterisation of those rights as rights of custody for Convention purposes. This was on the basis, long established in the English application of the Convention, that rights of custody are to be distinguished from mere rights of access: see, most recently, In re V-B (Abduction: Custody Rights) [1999]
2 FLR 192 and In re P (A Child) (Abduction: Custody Rights) [2005] Fam
293. Hunter v Murrow afforded no warrant at all for allowing the father to challenge the Romanian court's decision as to the content of his rights under
Romanian law. Save in exceptional circumstances, for example where the ruling has been obtained by fraud or in breach of the rules of natural justice,
it must be conclusive as to the parties' rights under the law of the requesting state.
[86] Baroness Hale was correct in pinpointing (supra [82]) the source of the alleged divergence of New Zealand law over rights of custody as the Court of Appeal judgment in Dellabarca v Christie [1999] 2 NZLR 548. That judgment was considered by Panckhurst and Chisholm JJ in M v H and was influential on both the High Court, on the Family Court, and on Judge Bisphan in Anderson v Paterson, in his approach to Article 5a “rights of custody”.
[87] The New Zealand Court of Appeal too has commented on New Zealand’s interpretation being out of step with that of other jurisdictions. In Basingstoke v Groot [2007] NZFLR 363 it hinted that there could be grounds for revisiting New
Zealand’s approach, though it did not need to do so given its decision on habitual residence:
[85] There is no doubt that it is important that the interpretation of the Hague Convention be consistent between jurisdictions – see Dellabarca v Christie itself at 551, SK v KP at [63], P v Secretary for Justice at [10] and [171] and Punter at [61]. If it is the case that New Zealand is out of step with other jurisdictions on the way it approaches the question of rights of custody, then there may be grounds for revisiting this Court’s decisions on that topic
….
[88] The High Court in M v H [2006] NZFLR 623 was also conscious that New Zealand might “be at odds” with the approach in England. It stated, though, “the fact remains that the Court of Appeal has fashioned an approach in this country which may well be different to that in other jurisdictions, but which is nonetheless binding on both the Family Court and this Court” (at [19]). (See too: B D Inglis QC, New Zealand Family Law in the 21st Century (Thompson Brookers Wellington, 2007) p
564 where the author writes Dellabarca v Christie “may need reconsideration”).
What is the current effect of Dellabarca v Christie?
[89] We now turn to that authority to examine its principles and the extent to which it is binding on us. The Court of Appeal’s judgment was delivered by Keith J, now a Judge of the International Court of Justice, and rightly regarded as New Zealand’s leading jurist in the international law field.
[90] Dellabarca v Christie too involved an Article 15 declaration. The mother had taken her two year old son in late 1995 from New Zealand to Western Australia. The father did not have guardianship status. But he contended the removal was wrongful and invoked Article 3 of the Convention. At the request of his solicitors, the Australian Central Authority sought an Article 15 declaration from the New Zealand Family Court that the removal was wrongful.
[91] The Family Court made a declaration that the removal was wrongful in terms of Article 3 because it breached the father’s rights of custody conferred on him by an agreement, which had legal effect under New Zealand law. The Family Court, as is apparent from the High Court judgment (reported as Christie and Dellabarca [1997]
NZFLR 396), appears to have made a finding that the father’s access rights under the agreement were tantamount to “rights of custody” for Article 3 purposes.
[92] The agreement in question was a document signed by a counsellor appointed by the Family Court. It was dated a mere twelve days before the child’s removal. It was short and simple, and relevantly stated:
•The couple had shared a relationship for three years and had an 18 month son,
•For the mother’s peace of mind she needed a custody order, to which the father said he would agree,
•Daytime access was every Wednesday, with three overnight stays being introduced the following month,
•The mother would have day to day care of her son, with access on a “regular basis”, plus a week during January 1996 (a holiday period),
• The access arrangements would be reviewed six monthly.
[93] The mother successfully appealed to the High Court. Her appeal was allowed by Robertson J on the bases that first the “rights” conferred by the agreement were not rights of custody, and secondly the agreement did not have legal effect. Robertson J in particular referred to both s 4 of the Guardianship Amendment Act
1991 and Article 5a. The Judge emphasised that Article 5a rights of custody must include the right to determine the child’s place of residence, which the 10 November agreement did not confer. As a corollary to the Judge’s approach he considered that “access rights alone (even if substantial)” did not constitute Article 3 “rights of custody”. What was essential to “rights of custody” was the additional right to determine a child’s place of residence which was “an incident of guardianship”. There was nothing in Gross v Boda “contrary to that conclusion” (at 399-400). This approach, with respect, was perceptive and totally in line with the English decisions which we have discussed.
[94] The second limb of Robertson J’s decision was his finding that an informal agreement fell short of the status of an agreement having legal affect for the purposes of Article 3. Such an agreement, in the Judge’s view, was not covered by s 18 of the Guardianship Act 1968. The agreement was an informal and reviewable arrangement which did not affect the mother’s guardianship rights. The Judge additionally considered (at 401) that there were sound policy reasons why an unsigned agreement, which might well be the product of pressure on the parties or their emotionally charged state, should not form the basis for a wrongful removal application.
[95] The father then appealed to the Court of Appeal. His appeal was dismissed. (Dellabarca v Christie [1999] 2 NZLR 548). As is apparent from the following discussion Keith J, who delivered the Court’s judgment, took a different view of Article 5a rights of custody from Robertson J. However, the appeal was dismissed because the Court of Appeal agreed with Robertson J’s analysis of the informal agreement the parties had reached.
[96] Keith J did not see the wording of Article 5a in the same terms as Robertson J. Surprisingly perhaps, given the specific wording of Article 5a and the then operative s 4 of the Guardianship Amendment Act 1991, Keith J did not consider “claimants” for orders for return had to have the right to determine a child’s place of residence. Other qualifying rights would suffice.
We do not think that the wording of the provision inexorably produces that result.
In its literal terms, the provision does not have to be read as requiring that the claimants in question have the right to determine the child's right of residence. Rather, it can be read in this alternative way: claimants may succeed if they show that they have any qualifying rights relating to the care of the person of the child, one of which rights may be the right to determine place of residence. That particular right, on this reading, is just one of the qualifying rights of custody, or, to adapt a common expression, the existence of that right is sufficient but not necessary.
That wider reading gains strong support from a consideration of the words which the Judge omitted from art 5a at the critical point of his judgment. We emphasise them:
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. (Emphasis added.)
The emphasised words support the proposition that the residence right is just one particular qualifying instance and not a necessary qualification. The Judge's interpretation essentially removes the emphasised words from the definition. As well it would produce the most unusual result of treating an inclusive definition (“shall include”) as exclusive or exhaustive, cf eg J F Burrows, Statute Law in New Zealand (1992) at pp 190 – 193. [at 552]
[97] Robertson J had referred to the relevant definitions of custody and guardianship under s 3 of the Guardianship Act 1968 and had observed it was pertinent whether a person was a guardian in terms of s 6 or whether the mother was the sole guardian by virtue of s 6(2). As we have observed His Honour considered that notions of guardianship and its attendant rights were central to the Article 3 concept of “rights of custody” and the essential right to determine a child’s residence. With this analysis (similar to our own analysis here), Keith J appears to have disagreed.
…. Robertson J emphasises the centrality in the inquiry under the convention and the 1991 Act of the role of guardianship and the definitions of it and of custody in the 1968 Act. With respect, we disagree if by that it is being said that national concepts govern the interpretation of the convention. The convention is not directly concerned with guardianship, or even with custody. Nor does it use national concepts directly – as indeed the quoted
1989 conclusions indicated. As those conclusions also say, the convention established an autonomous concept. While the rights arising under national
law must plainly be central in the application of the convention definition,
they do not determine its meaning.
Accordingly, while a guardian under national law may well qualify under the convention, that would be because the rights of the guardian under that law include “rights relating to the care of the person of the child” in terms of the convention.
The breadth of the concept used in the convention is stressed in the explanatory report on the convention prepared by Professor Elisa Pérez-Vera who had been the reporter of the Hague Conference on Private International Law which prepared the convention. The report was published by the Permanent Bureau of the conference in 1982. It begins with a statement of its purpose at paras 5 and 6:
“On the one hand, it must throw into relief, as accurately as possible, the principles which form the basis of the Convention and, wherever necessary, the development of those ideas which led to such principles being chosen from amongst existing options. . . .
6 This final Report must also fulfil another purpose, viz to supply those who have to apply the Convention with a detailed commentary on its provisions. Since this commentary is designed in principle to throw light upon the literal terms of these provisions, it
will be concerned much less with tracing their origins than with stating their content accurately.”
The discussion of the General characteristics of the Convention begins with this passage at para 9:
“9 The Convention reflects on the whole a compromise between two concepts, different in part, concerning the end to be achieved. In fact one can see in the preliminary proceedings a potential conflict between the desire to protect factual situations altered by the wrongful removal or retention of a child, and that of guaranteeing, in particular, respect for the legal relationships which may underlie such situations. The Convention has struck a rather delicate balance in this regard. On the one hand, it is clear that the Convention is not essentially concerned with the merits of custody rights (article 19), but on the other hand it is equally clear that the characterization of the removal or retention of a child as wrongful is made conditional upon the existence of a right of custody which gives legal content to a situation which was modified by those very actions which it is intended to prevent.” [at 554]
[98] At 555, Keith J provided an interim summary:
To summarise to this point:
• claimants under the convention and 1991 Act do not have to establish that they have the right to determine the place of the child's residence;
• the expression “rights of custody” and the part definition of “rights relating to the care of the person of the child” are to be given their ordinary meaning in their context and in the light of their purpose;
• they are broad expressions and are not necessarily confined to national concepts of “guardianship” or “custody”; and
• while rights under national law are obviously critical in the application of the international wording those rights and related concepts are not to be substituted for that wording and they do not determine its meaning.
[99] The Court of Appeal then analysed the parties’ agreement and concluded that the child’s removal was in breach of the father’s rights of custody assuming he had rights arising (under Article 3) “by reason of an agreement having legal effect under the law of New Zealand”. It next analysed that assumption. It referred to Robertson J’s observation that the agreement was an informal reviewable arrangement and not intended to affect a mother’s guardianship rights. There was no challenge either in the High Court or in the Court of Appeal to the Family Court’s conclusion that the
father was not a guardian of his son. Robertson J had held that an informal agreement of this type could not be elevated by virtue of s 18 of the Guardianship Act 1968 to the status of an agreement with legal effect.
[100] Section 18 of the Guardianship Act provided:
18 Effect of custody agreements
An agreement between the father and mother of a child with respect to the custody or upbringing of or access to the child shall be valid, whether or not either of the parties is a minor, but shall not be enforced if the Court is of opinion that it is not for the welfare of the child to give effect to it.
Keith J tracked the history of s 18, seeing its original purpose as being remedial to avoid the rule of In Re Besant (1879) 11 ChD 508 to the effect that an agreement by a father to part with custody of a child was contrary to public policy and thus void.
[101] In the event, the Court of Appeal agreed with Robertson J that the November
1995 document did not amount to an agreement at all. It was not in the form of an agreement. Neither mother nor father had signed it. It was “expressed somewhat awkwardly and ambiguously”. It was imprecise in its terms since access was to be only on a “regular basis”; it was to be reviewed six monthly.
[102] Thus the appeal was dismissed. In the absence of an agreement which complied with s 18 (let alone with Article 3), the father had no rights of custody.
[103] In both Dellabarca v Christie and M v H the issue of a non-guardian father’s rights of custody was closely linked to the existence of an agreement. In this case we have no evidence about the terms of the parenting plan which the parties agreed referred to in the counsellor’s 16 May 2007 report. The father’s counsel submitted that plan was not central to their argument that the father had rights of custody. Rather, counsel relied on the principles enunciated in Dellabarca v Christie and M v H.
[104] Relevant to the weight we give to this submission and the influence which those two judgments have on our own decision is the fact that s 18 of the Guardianship Act 1968 has not been replicated in COCA. Rather, (supra [61]) there
is a statutory right for parents to such a negotiated agreement to seek embodiment of its terms in Family Court orders.
Conclusion on Dellabarca v Christie
[105] The distinguished commentator the late B D Inglis QC (op cit) generally approving of the approach to “rights of custody” set out in Dellabarca v Christie wrote:
However it may be, with respect, added that in a case where the applicant did not, according to the law of the country of habitual residence, have “rights relating to the care of the person of the child (for example, the role of providing day-to-day care for the child)” or “the right to determine the child’s place of residence” as those elements are to be understood in terms of the Convention, the applicant may expect to encounter formidable difficulties in establishing “rights of custody” which are to be clearly distinguished from “rights of access” which are also expressly protected by the Convention. [at 563]
[106] Such “formidable difficulties” were not examined closely in Dellabarca v Christie. Both in that case and in M v H agreements concluded by the parents were important factors. But clearly as we have said (supra [60]) the father in this case had inchoate guardianship rights in the sense that he could have become at least an interim guardian by Family Court order. So too under s 40(1)(b) of COCA such rights as he may have received under the parties’ agreement could have been embodied in a court order. These considerations are not conclusive on the Article 5a issue.
[107] We are not persuaded that Dellabarca v Christie is either binding or indeed highly persuasive authority for the proposition which Ms Parsons advances, namely that the father’s inchoate rights afford him rights of custody for the purpose of Articles 3 and 5a and s 97 of COCA. Nor do we consider Dellabarca v Christie is authority for the broad proposition that a non-guardian father automatically has rights of custody of the type which Articles 3 and 5a makes central to the Convention. We have reached this conclusion for the following reasons:
a) The dispute which confronted the Court in Dellabarca v Christie
arose 13 years ago, in November 1995. Since then there have been
changes, not to the Convention, but to the legislation enacting it, and in particular to the jurisprudence of significant Convention signatories, in this case the United Kingdom.
b) As Keith J rightly observed (at 551), New Zealand Courts:
…. should if possible interpret the Convention in the same way as others do, in this matter of international concern, as Lord Denning MR indicated in a case about the Warsaw Convention 1929 on carriage by air, Corocraft Ltd v Pan American Airways Inc [1969] 1 QB 616, 655. The Hague Convention is similarly designed to operate on a uniform basis between the 50 or more parties to it.
This approach has been recognised in the Convention cases we have discussed. (In re D (A Child) (Abduction: Rights of Custody) [2007] 1
AC 619 at [15] and [28]; Hunter v Murrow [2005] 2 FLR 1119; Chief Executive of the Department of Courts v Phelps [2000] 1 NZLR 168 at [14]).
It is undesirable for New Zealand law on the Convention to be out of step with the law of other signatory states.
c) As is apparent from the English Court of Appeal’s treatment of the High Court’s decision in M v H (supra [75]) an expansive interpretation of Article 5a “rights of custody” to include the various inchoate rights of a non-guardian father seems to run counter to the jurisprudence of other significant Convention signatories.
d)The Court of Appeal’s treatment of the now repealed s 4 of the Guardianship Amendment Act 1991 and rights of custody are obiter. The High Court judgment of Robertson J that the father in Dellabarca v Christie had no rights of custody was upheld.
e) It seems doubtful whether, given the analysis of Baroness Hale In re D (A Child) (Abduction: Rights of Custody) (supra), Keith J’s broad statement (in context correct) that the Convention is not directly concerned with guardianship or even custody justifies the
interpretation which some New Zealand courts have given to the
Article 5a “rights of custody” definition.
f) Keith J’s observation that the Convention does not “use national concepts directly” (at 554) should not alter what must be the direct focus on whether a parent under the law of the state of the child’s habitual residence had, and was exercising, Article 5a rights of custody. Domestic law does not determine the meaning of the Article
5a phrase “rights of custody”. But rights of custody there must be, and if under New Zealand law a parent has no rights of custody, then it is difficult to see how such parent can possibly claim Article 5a rights.
g) In the intervening 13 years, as emphasised by Thorpe LJ (supra [79]) and as is evident from the pre-and-post 2005 substantive rules contained in s 17 and 18 of COCA, the trend of domestic law is towards conferring clearly understood Article 5a rights of custody on both a child’s natural parents.
h)There were arguably two alternative interpretations of Article 5a. The interpretative choice, for New Zealand purposes, may have been coloured by the use of “and” in s 4 of the now repealed Guardianship Amendment Act 1991 and s 97 of COCA. As a matter of statutory interpretation, the “and” in these circumstances could be interpreted conjunctively or disjunctively depending on the underlying purpose of the legislation and general context of the provision (see Bennion on
Statutory Interpretation 5th Ed, F A R Bennion, LexisNexis, 2008 at p
1192; Maxwell on the Interpretation of Statutes 12th Ed, P St J Langan, N.M., Tripathi Private Ltd Bombay 1981 at 232 ff; and Statutory Interpretation in Australia 6th Ed, R Geddes and D C Pearce, LexisNexis Australia 2006 at 47 ff). The first interpretation (clearly deployed by Keith J in Dellabarca v Christie) is disjunctive and is to define “rights of custody” as being the right relating to the care of the person of the child, with the right to determine the child’s place of residence being an additional meaning. The second
interpretation, which clearly other Convention state courts prefer, as do we, is conjunctive and is that rights of custody must include the right to determine a child’s place of residence.
i)That the Convention is a living document with the result that the courts of signatory states may need to evaluate past approaches is a proposition which received support from Thorpe LJ in Hunter v Murrow:
30 … I recognise that the Convention is a living instrument. 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 and interpretations in its 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 practise in the application of the treaty which establishes the
agreement of the parties regarding its interpretation.
[108] These factors, in combination, lead us to the conclusion that Dellabarca v Christie is distinguishable, certainly not binding on us in the situation we face, and should not (as it was to a large extent in M v H), be determinative of the result.
[109] In reaching that conclusion we echo the concern and regret expressed by Thorpe LJ in Hunter v Murrow at [34]. He commented that the complete removal of the father from the child’s life “without preparation or forewarning must have been extremely distressing to the father but also, and of greater importance, a harmful deprivation to [the child]. Putting authority aside children should be protected from such harm.” The conclusion we have reached on a non-guardian father’s Convention rights produces a regrettable result if the Family Court of Australia decides on the facts that this father was indeed a non-guardian.
Parental agreements
[110] We add a comment on parental agreements. Section 18 of the Guardianship
Act 1968 was in part, as Keith J observed in Dellabarca v Christie (supra [100])
designed to avoid common law problems arising out of parents attempting to oust the broad parens patriae jurisdiction of courts. It is significant that the section envisaged agreements being enforced by courts, but only to the extent that agreements did not run counter to a child’s welfare. Section 40 of COCA adopts a different perspective. Inter-parental agreements, formal and informal are to be encouraged but their terms ideally should be embodied in court orders. Doubtless many separating or estranged parents will enter into inter partes agreements setting out care arrangements for children. Many if not most of those agreements will not be embodied into court orders. Should the parents subsequently fall out over care arrangements the options will be either to renegotiate the agreements or to seek orders in the Family Court. The Family Court, when its jurisdiction is invoked in these situations, will not necessarily “enforce” the agreement. Rather it will regard the agreement as being part of the factual matrix and will make orders solely through the prism of the s 4 welfare and best interests of the child.
[111] The father’s counsel were, as we have said, not relying on the existence of an agreement here. Although an agreement to which a non-guardian New Zealand parent is a party will prima facie fall inside the Article 3 description of “an agreement having legal effect under the law of [New Zealand]”, such an agreement does not in our judgment confer on a non-guardian parent, ipso facto, rights of custody. It might do so in situations where the agreement expressly stipulates that a child was not to be taken outside New Zealand or the child’s residence will not be changed without the consent of both parents. But there is no evidence of such provisions here. Nor were there such provisions in the agreements in M v H and Dellabarca v Christie.
Article 15 Determination
[112] The Article 15 provision for a judicial authority of a contracting state to obtain a decision or other determination that a child’s removal or retention is wrongful within the meaning of Article 3 has been transmogrified somewhat by s 111 into giving courts discretionary jurisdiction to make a declaration.
[113] Mr Page submitted that we should exercise the discretion which the word “may” incorporates into s 111 to decline a declaration. In his submission a declaration of this court would add nothing to evidence which has been or could be placed before the Family Court of Australia on the relevant New Zealand law. Particularly was this the case in a situation where the central issue for determination by the Australian court was a factual dispute.
[114] Mr Page relied on the dicta of Dyson LJ in Hunter v Murrow:
51 Whether it is right to request a determination on the domestic law question under article 15 will depend on the circumstances of the case. These will include (i) the nature of the dispute raised by the question, (ii) whether the parties intend to adduce evidence from experts who appear to be suitably qualified to express an opinion on the issues raised by the dispute, (iii) whether the question can be satisfactorily answered on the basis of articles
8(f) or 14, and (iv) what delay is likely to be caused by the request. In many cases, the court is likely to conclude that the domestic law question can be
resolved without recourse to a request under article 15.
….
56 In my judgment, therefore, no useful purpose is served in asking for a determination solely on the Convention question. Take the present case. The courts of New Zealand are no better placed than the courts of this country to decide whether the rights enjoyed by the applicant in relation to the child according to New Zealand domestic law amount to rights of custody within the autonomous meaning of articles 3 and 5 of the Convention. It is regrettable, but perhaps inevitable, that there are divergences of view as to the international meaning of concepts such as "rights of custody" and "rights of access". The present case illustrates this only too vividly, and shows why there is no point in obtaining a ruling on the Convention question.
[115] In Mr Page’s submission the speech of Lord Brown In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 was wrong (the case, as we have said, concerned an English Court’s rejection of a Romanian Article 15 Declaration). Lord Brown said:
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 Convention term "rights of custody". There is nothing of that sort here. On the contrary, the judge-neither Johnson J (who had requested the determination) nor Hogg J (who later ordered the child's return to Romania)- on 1 August 2005, acting merely on the father's request, ordered that an
expert in Romanian law be jointly instructed by both parties to cover exactly the same ground as the Romanian Appeal Courts had themselves just covered. This decision seems to me incomprehensible unless perhaps it is to be explained by reference to the Court of Appeal's judgments in Hunter v Murrow (Abduction: Rights of Custody) [2005] 2 FLR 1119 which had been handed down just three days previously on 28 July 2005.
[116] We reject Mr Page’s submission that we should exercise our s 111 discretion against making a declaration. As Mr Ashmore submitted, there seem to be no cases where courts have refused to make a declaration when requested so to do. Article
15, in our judgment, serves a useful purpose. It is designed to ensure that the courts of signatory states being asked to make orders for the return of removed or retained children have some guidance on the relevant law in the state of the child’s habitual residence. The mechanism is a useful one and is certainly valuable in situations (unlike the case here) where the passage of abducted children between two signatory states is infrequent.
[117] As is clear from Article 15, the request can come from either a court or from some other administrative body which would include a Central Authority. Dyson LJ’s comments are focused on a situation where it was an English court which initially sought an Article 15 declaration from the New Zealand court. Whether or not a court invokes Article 15 is entirely a matter for it. Such a judicial request would be motivated in part by the extent to which a court considers it would be helped by an authoritative decision or determination from a court in the state of the child’s habitual residence.
[118] Here the Request has come from the Australian Central Authority. We do not know what has triggered it. As we have commented, part of the Request relates to a factual dispute which is intrinsically unsuitable for an Article 15 request. Nonetheless, as a matter of both judicial comity and international law obligation, we consider it would be wrong in the circumstances of this case for us to decline to exercise the s 111 discretion.
Result
[119] Accordingly, we deal with the Article 15 Request (supra [16]) from the
Australian Central Authority as follows:
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 s17(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.
c)We decline to determine the question of whether the child’s mother and father were living as de facto partners at the time the child was born, that being solely a factual matter for the Family Court of Australia to determine.
Costs and Other Matters
[120] The Court records its gratitude to Mr Page SC for appearing on what we understand, for that phase of his brief, was essentially a pro bono basis.
[121] Our perception is that both parties are legally aided. The hearing has given rise to important aspects of law where there were conflicting authorities and where the outcome (so far as s 111 was concerned) was far from certain.
[122] In these circumstances we are not minded to award costs to either party. If either party wish to challenge this indication, a memorandum seeking costs must be filed within 21 days.
[123] We assess this case may be of some jurisprudential interest and could be reported. Section 139(1) of COCA prohibits publication of a report which might lead to the identification of the parties or the child. The tension between that provision and s 139(4) often leads to initialisation.
[124] In the event of this judgment being reported we direct it is to be published and cited as Fairfax v Ireton. Counsel have advised us the parties have no objection to these fictitious names.
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Priestley J
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Cooper J
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