Green v White - [2018] NZHC 3249

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2018-443-60

[2018] NZHC 3249

IN THE MATTER OF THE CARE OF CHILDREN ACT 2004 THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980

AND

AN APPEAL AGAINST A FAMILY COURT DECISION DIRECTING CHILDREN BE REMOVED TO AUSTRALIA

BETWEEN

MS GREEN

Appellant

AND

MR WHITE

Respondent

Hearing: 3 December 2018

Appearances:

M D Cochrane for the Appellant A F Johnston for the Respondent

Judgment:

11 December 2018

JUDGMENT OF CULL J

TABLE OF CONTENTS

Factual background  3
Legal context: child abduction  14
District Court decision  20
Approach to appeal  28
Grounds of appeal  30
Were the children habitually resident in Australia before their removal to New Zealand?        33
GREEN v WHITE [2018] NZHC 3249 [11 December 2018]

Analysis  36
Is there a grave risk of an intolerable situation if the children are returned?  51
Analysis  57
Was Ms Green properly heard before the Family Court?  78
Result  80

[1] This is an appeal under the Hague Convention and the Care of Children Act 2004 (the Act) from a decision of the Family Court, ordering the return to Australia of two children taken by their mother in breach of the father’s parenting rights.1 The Secretary for Justice as the New Zealand Central Authority under the Hague Convention made the initial application for return in the Family Court and the mother now appeals the Family Court’s decision for return of the children to Australia.

[2] This appeal concerns ss 105 and 106 of the Care of Children Act. The mother appeals on two grounds: that under s 106 that there is a grave risk that the children’s return would otherwise place the children in an intolerable situation;2 and that the finding under s 105(1)(d) that the children were habitually resident in Australia at the time of removal was in error.

Factual background

[3] Mr White (the father) is an Australian national. Ms Green (the mother) is a New Zealand national.3

[4] From the Family Court decision and the chronology provided, the history between the parties is as follows.

[5] The parties met and started their relationship in the United Kingdom in 2010. In 2012, they decided to move to Australia. Ms Green lived and worked in Western Australia for one and a half years from 2007.

[6] In late 2012 the parties moved to South Australia. Their first child, Paul, was born in Australia on 22 May 2014 and is an Australian national. Their second child,

1      [White] v [Green] [2018] NZFC 6420.
2      Section 106(1)(c)(ii).
3      The names of the parties and children have been anonymised to protect their identities.

John, was born in New Zealand on 11 January 2017…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Green v White

Details

AGLC: Green v White [2018] NZHC 3249
Case: [2018] NZHC 3249
Decision Date: 11 December 2018

CaseChat Overview and Summary

In the case of Green v White, Ms Green, the mother, appeals the Family Court’s decision ordering the return of her two children to Australia under the Hague Convention and the Care of Children Act 2004. Mr White, the father, had filed an application in the Family Court for the return of the children, who were taken to New Zealand by Ms Green in breach of his parenting rights. The Secretary for Justice, as the New Zealand Central Authority under the Hague Convention, made the initial application for return. Ms Green challenges the Family Court’s decision on two grounds: that there is a grave risk that the children’s return would place them in an intolerable situation, and that the finding under s 105(1)(d) that the children were habitually resident in Australia at the time of removal was in error. In dismissing the appeal, Cull J found that the children were habitually resident in Australia at the time of their removal and that there was no grave risk that their return would place them in an intolerable situation. The Court observed that the appropriate forum for addressing allegations between Ms Green and Mr White is the Australian Family Court.

Orders