Hall v NZ Central Authority on behalf of Hall
[2016] NZHC 780
•22 April 2016
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-300 [2016] NZHC 780
BETWEEN J HALL
Appellant
AND
THE NZ CENTRAL AUTHORITY ON BEHALF OF P HALL
Respondent
Hearing: 14 April 2016 Counsel:
A Hart for Appellant
M Casey QC and P Maskell for Respondent
S Jefferson QC for the childrenJudgment:
22 April 2016
JUDGMENT OF WHATA J
This judgment was delivered by me on 22 April 2016 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Hart and Associates, Auckland
HALL v THE NZ CENTRAL AUTHORITY [2016] NZHC 780 [22 April 2016]
[1] Orders were made for the return of the children of Mr and Mrs Hall to the United States. Due to immigration issues Mrs Hall could not return with the children on an agreed date. She made an urgent application to defer the return date. This was refused. The Central Authority sought a warrant for the return of children. This was opposed by Mrs Hall and she made a number of applications, the purpose of which was to keep the children in New Zealand until her immigration status was resolved. Judge de Jong granted the warrant application on the condition that it lie in Court for six weeks to allow sufficient time for one of the children to recover from leg injuries caused by a fall from a horse. The Judge refused to allow further time to enable Mrs Hall to obtain a visa to stay in the United States.
[2] Mrs Hall appeals to this Court claiming (in short):
(a) Judicial bias, apparent bias and predetermination because the Judge inappropriately chastised counsel and Mrs Hall, leading to the perception that the Judge did not fairly and impartially address the case for Mrs Hall;
(b)The Judge wrongly ignored evidence of risk of harm to the children, including evidence of allegations of sexual abuse;
(c) The Judge wrongly deferred to the Central Authority to secure the safe transition of the children to the United States; and
(d)The Judge was plainly wrong not to allow a short adjournment to enable Mrs Hall an opportunity to secure a visa to travel and stay with the children in the United States.
The Convention decision
[3] In a decision dated 9 October 2015, Judge de Jong made the following orders:1
(a) The respondent mother’s application dated 21 September 2015 to strike out affidavits filed on behalf of the applicant father is dismissed.
(b) The mother’s application dated 5 October 2015 to adduce further
evidence is granted by consent.
(c) An order is made for the children to be promptly returned to Kansas, USA.
(d) The proceedings are adjourned to a date to be fixed, by telephone conference if necessary, in about three weeks or so for the purpose of implementing or giving effect to the order for return.
(e) The registrar is directed to forward a copy of this judgment to the presiding Kansas District Court Judge in Leavenworth County, 601
S. 3rd Street, Suite 3051, Leavenworth, KS 66048.
[4] The Judge rejected Mrs Hall’s allegation that an order to return the children will place them at grave risk in the hands of the father or otherwise place them in an intolerable situation. The Judge noted:
[45] What the evidence before this Court highlights is that both parents are likely to have personal issues they need to address, the children appear to have had behavioural and learning difficulties long before they arrived in New Zealand which need to be investigated and assessed, while there are concerns about Liam’s threats to self harm there is no evidence about what has led to this, but there is a suggestion they are not serious threats. Liam appears to be a sensitive child who requires special attention, the children appear to have been inappropriately involved in adult issues, there may be issues about the quality of the homeschooling the children were receiving in the USA, there is a conflict in the family relationships, and there is a poor parental relationship. The forum for addressing all these issues is USA because it is the originating country and where the children have always lived.
[46] Much is made of the liberal American gun laws in the mother’s evidence, and her lawyer’s submissions, but this is largely a cultural factor that must be assessed in the context of this family by the Kansas Family Court. The nature and quality of this evidence does not register on the grave risk litmus test of harm and/or intolerable situation.
1 PGF v JVF [2015] NZFC 9021 at [53].
(Footnotes not included.)
[5] The Judge then summarised the various allegations made by Mrs Hall against the father. He concluded that:
[48] Even if some of the more serious allegations are ultimately found to be true, and fall within the category of substantial, severe or significant harm contemplated by the Convention, this Court is not satisfied there is a grave or substantial risk the children’s return to the USA will expose the children to physical or psychological harm, or otherwise place the children in an intolerable situation, for the following reasons:
(a) While no violence is acceptable, the degree and nature of the evidence does not reach the grave or substantial risk threshold.
(b) There are similarities in the American Family Court system to ours and protective measures are available in that country if necessary. The Kansas Code was admitted by consent today and is based on a best interests model.
(c) There is insufficient evidence to support the mother’s view that the father will kill her or organise someone to carry out her murder. It is understandable the father is angry and upset, and that the mother is fearful about how he might react upon her return, but, irrespective of the American gun laws and the father’s use of firearms, this does not mean he will kill her or arrange for her death.
(d) The email exchange between the parties before 17 February this year gave no indication that the mother or children were fearful of the father, or did not expect to return to their home in the USA. This all changed when it is said the maternal grandmother was involved in a car accident, or her condition deteriorated, and the mother refused to return the children.
(e) Much of the evidence regarding the mother’s allegations is disputed and needs to be tested in a way that allows the father to participate. It would be inappropriate for this Court to assess the evidence without the benefit of all available witnesses.
(f) Despite the existence of an ex parte temporary custody order placing the children in their father’s care, if the mother returns to the USA with the children this Court has some confidence the children’s situation will be reviewed by the Kansas Family Court because of their best interests based family law system. I note the order itself is designed to contain the children in the USA. It is also noted that the father’s petition for divorce seeks a parenting plan to be determined at the final hearing. This Court intends to forward a copy of this judgment to the presiding Kansas
District Court Judge in Leavenworth County for their information and due consideration.
(g) The mother’s steps taken to unilaterally or wrongfully retain the children without reference to the father cannot be condoned. The mother has effectively tried to relocate the children to New Zealand through the back door, rather than using the front door in America.
(h) The children have a right to have a relationship with their father, and how that relationship is played out is a matter for the American family court to determine. The Kansas Family Court is currently seized of the proceedings. It is in the children’s best interests that the Kansas Family Court assesses the children’s long term welfare and best interests. That country is where the children have lived all their lives and their Family Court is best placed to determine the children’s future with the benefit of both parties and not just one. No doubt the American Family Court will have access to a copy of all documents before this Court, including the Skype call recordings and transcripts.
(i) The only barrier to the children returning to the USA is the barrier the mother has imposed.
(j) While it would not be ideal for the children to return to America without their mother, because it will leave them extremely upset, this does not reach the grave risk standard anticipated by the Convention.
[6] The Judge allowed the application for an order for the return of the children to the United States pursuant to s 105 of the Care of Children Act 2004 (the Act). The Judge concluded that the children are not at grave risk and that the s 106 grave risk defence had not been made out on the balance of probabilities.
The appeal is abandoned
[7] It is not necessary to dwell further on this decision, as it is no longer under appeal, Mrs Hall having discontinued the appeal on 9 December 2015.
[8] Following a joint memorandum, the Family Court made directions to implement the return order on 15 January 2016. Mrs Hall subsequently changed counsel and sought, on 15 January 2016, an extension of three weeks on the basis that “[u]nbeknown to Mrs [Hall] at the time she agreed to the return date, her green card was to expire on 5th December 2015” and that “if Mrs [Hall] were to travel to
the US on the ESTA authorisation, she would be absolutely unable to have any
extension granted beyond the 90 days”.
[9] The memorandum also noted that “no or no adequate arrangements have been made for the children to be met and accompanied by any suitable person in the US”. Reference is also made to Mrs Hall’s “extremely limited financial circumstances”.
[10] These matters were brought to the Court’s attention just hours before the agreed departure on 15 January 2016. Judge de Jong was not prepared to make any orders without the input of other counsel and suggested that Ms Hart confer with other counsel. Ms Hart was unable to reach other counsel and sought a telephone conference late on Friday afternoon. The Judge considered it was, at that stage, too late to arrange a telephone conference and stipulated that if there was a need for a telephone conference, it would be in the week commencing 18 January. It appears that Ms Hart made an oral application to the High Court at Auckland seeking an injunction which was not granted. There was then a telephone conference convened by Judge de Jong at 9.00 pm on Friday, 15 January. The Judge declined to make any orders deferring or stopping the children’s travel, indicating to Ms Hart that reasons would follow in due course. A flurry of documentation was then filed, including:
(a) An application by Mr Hall for a warrant to enforce the return order;
(b)An application for an extension of time to enable adjustments to travel and accommodation arrangements;
(c) A further memorandum of Ms Hart seeking adjustment to the time for departure;
(d)A notice of opposition to the application for a warrant to uplift the children dated 20 January 2016; and
(e) A memorandum of counsel for the Central Authority, together with an affidavit concerning the warrant application which had been filed previously with the original application on 24 July 2015.
[11] Judge de Jong addressed this documentation in a minute of 21 January 2016, indicating that it may be possible to hear the matter at 3.45 pm on Wednesday,
27 January. Orders were made as follows:
a)A one-hour submissions only hearing is directed before me as outlined above.
b) Mrs [Hall] may file any further affidavits by 4pm Monday
25 January.
c) Counsel must file any submissions in writing by 4.30pm Tuesday
26 January.
[12] There is then a further minute issued by Judge de Jong on 22 January, noting:
1 Ms Hart seeks a direction made yesterday on the basis Monday is a public holiday. She may have her months mixed up because Monday is not a public holiday anywhere in New Zealand.
2 At yesterday’s telephone judicial conference I discussed with counsel what days they were not available next week for a hearing and the only day Ms Hart signalled her unavailability was Tuesday.
3 Unfortunately, Wednesday is the only day I am available at the moment to hear this matter properly because a two day fixture will now only take one day on Tuesday. The prospect of dealing with the matter on Friday morning at 9.00 am is in the middle of another 2 day hearing which is now problematic.
4 The current directions remain in place. The issue for determination is relatively narrow and a ½ day is now available for hearing at 2.15 pm on Wednesday.
5 I have no problem with Ms Hart filing her affidavit by 11.00 am on
Wednesday.
[13] Included within the information supplied to the Court by Ms Hart is a letter from the New Zealand Police confirming that a criminal investigation of Mr Hall has been initiated. The letter states:
20 January 2016
Dear Alexis Hart
Re: Complaint File 151223/2149 – [O] [Hall]
This letter is provided for the purpose of advising the New Zealand Courts that an investigation has commenced in relation to a disclosure made by [O] [Hall] aged 10 years. It relates to offending which is alleged to have
occurred against her in the United States of America and it is further alleged that [P] [Hall] aged 41 years is the offender.
[O] has provided an evidential statement to New Zealand Police forming the basis of an investigation and the file is being progressed by New Zealand Police.
All lines of enquiry in New Zealand will be investigated and when complete the file will be sent through Interpol to the New Zealand Police Liaison Officer in Washington DC and forwarded to the appropriate Police Department in the United States for further investigation.
It is anticipated that the file will be with Interpol within 10 working days from the date of this letter.
There are a number of unknown factors in relation to the length of time it will take overseas authorities to complete their investigation, therefore at this time I am unable to indicate when an outcome of the investigation will be available.
Yours faithfully
Detective Sergeant
Adam Styles
Child Protection Team
COUNTIES MANUKAU POLICE
[14] In anticipation of a fixture, submissions were exchanged. Counsel for the Central Authority emphasised that the order for return was longstanding and that Mrs Hall was simply delaying matters. Ms Hart provided a detailed memorandum claiming a change in circumstances, referring to:
(a) Mrs Hall’s immigration status; and
(b) The police investigation.
[15] In an oral judgment of 27 January 2016, Judge de Jong rejected Mrs Hall’s application. The Judge identified the “last minute” filing of documents by Ms Hart, together with the Judge’s busy schedule. His reasons for declining to intervene on
15 January 2016 are recorded as follows:2
[16] In essence, my reasons for declining to intervene on 15 January rely on the following matters:
2 PGF v JVF [2016] NZFC 646 at [16].
(a) The objects and principles of the Hague Convention and the Act referred to in paragraphs [24] & [25] of my October judgment.
(b) An order for return of the children was made three months before they were due to leave New Zealand on 15 January. Section 105(2) requires children to be returned promptly when an order for return is made. At that time it was not clear whether the mother would return to the USA with the children because her affidavit evidence suggested she would not.
(c) The flight arrangements for the children’s return were made in consultation with the parties and the Central Authority. The mother and children were granted an indulgence to remain in New Zealand for the Christmas/summer period and consent orders were made on this basis.
(d) The mother’s legal status in the USA was a feature of the
9 October hearing and there was confusion about the precise date her green card would expire. This means the mother knew at an early stage there may have been issues about her remaining in the USA with the children long term.
(e) There was nothing that gave this Court any confidence the mother had made a formal application regarding her legal status in the USA or that any application would be dealt within a short timeframe. Since then the mother’s lawyer advised the Court by email last Friday that she planned to work that day on an urgent immigration application and would have no time to work on anything else.
[16] The Judge then summarises the arguments for the Central Authority and for Mrs Hall, the latter’s argument in evidence receiving a detailed canvass, including reference to:
(a) Mrs Hall’s immigration issues;
(b)The interests of the children and having their mother travel with them back to the United States;
(c) Problems or potential problems with the mother being able to contest custody if she is not in the United States;
(d) The daughter’s horse riding accident and injuries;
(e) The psychologist’s risk assessment and the trauma and harm to the children, particular for one of the children who has Asperger’s syndrome;
(f) The ill health of the paternal grandmother; and
(g) The New Zealand Police investigation.
[17] Dealing with Mrs Hall’s claims that the issues over her immigration status would not have been necessary had the Central Authority “acted correctly”, the Judge observes:
[31] There is a certain irony in the mother’s claims. It was she who refused to return the children to the USA on 17 February last year and again after the order for return was made on 9 October. Although the mother’s lawyer submits no one was aware the mother’s green card would expire if she was out of the country for over a year, it is clear from the US Consulate- General’s letter that she would have been aware of this before the 12 months expired. Instead the mother elected to negotiate the children’s return by consent orders made on 9 December last year and arranged flights for
15 January this year.
[18] The Judge also states that the submissions about the investigation into the allegations of sexual abuse are “irresponsible” because there was insufficient evidence to support it, and that previous allegations of alleged violence were addressed in his October judgment.
[19] The Judge’s concern is recorded at [33]:
[33] While the mother has filed an affidavit this morning deposing to a Skype call between the daughter and paternal grandmother a few weeks ago, we do not know whether the mother was present during the call or what was said. From where I sit, it seems extraordinary that a 10 year old girl initiated a discussion with her paternal grandmother about sexual abuse allegations involving the father. This Court does not have any evidence about when the daughter had her evidential interview but it appears it may have been after the 3 January Skype call between the daughter and paternal grandmother. Given the background and history to this file to date, this raises concerns about the mother’s role in these proceedings as well as the context and nature of any allegations the daughter may have made. What is clear is that New Zealand Police plan to refer their files to their counterparts in the USA for investigation.
[20] The Judge then rejects a suggestion by Ms Hart that the matter be adjourned, noting that Mrs Hall had plenty of time to attend to her evidence and was granted extended time.
[21] The Judge adopts the 15 January reasons and concludes:
[36] The only significant difference between the situation faced by this Court today compared with 9 October and 15 January is that the parties’ daughter has an injury to both ankles that has required surgery. The injuries present as complex and serious enough to mean the daughter must not be weight bearing for at least six weeks and it is recommended she not travel overseas for the next six weeks.
[22] Contentions made by Ms Hart about the paramountcy of the welfare of the child by reference to the Secretary for Justice v HJ3 are approached on this basis:
[39] What is clear from s 4(4) is that, while the paramountcy principle set out in s 4(1) does not limit the effect of the Act relating to the Hague Convention, this Court is entitled to take account of matters relevant to the children’s welfare and best interests.
[23] Orders were made, as noted, for the return of the children in six weeks time to enable sufficient time for the daughter’s legs to heal. Relevant to the present application, the Judge made the following observations:
[42] While counsel for the children suggested it is open for this Court to make an order returning the boys, followed later by their sister, I believe it is in the welfare and best interests of the children they travel together when the daughter is well enough to fly – KS v LS [child abduction] [2003] 3 NZLR
837; (2003) 22 FRNZ 716 at [111]. The effect of this delay means the mother may have an answer from the USA authorities about her visa
application by the time the daughter is ready to travel. The position on behalf of the Central Authority is that, wherever possible, they support the
returning parent to accompany children. Ideally the mother should accompany the children but that is not essential for reasons set out in the
October judgment and this judgment.
[43] It is intended by the orders made today that the Central Authority will review the daughter’s fitness to travel after six weeks with any other information from the medical practitioners. While the Central Authority will be able to uplift the warrant from the Court in six weeks’ time, I am satisfied they will use their discretion wisely to make suitable travel arrangements for the children. If there is a realistic chance of the mother securing an SB-1 visa in time to accompany the children, it is appropriate the children’s return is delayed for a short time. However, if there is insufficient information available to have a clear understanding of when the visa application will be
3 Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289.
dealt with, it is appropriate the Central Authority uplift and execute the warrant once suitable travel arrangements can be made.
[44] I note the alternative the paternal grandmother flying to NZ remains an alternative to the mother accompanying the children back to USA. While issues have been raised by the mother regarding the paternal grandmother’s health, a very brief medical certificate has been produced to the Court indicating the grandmother does not have heart issues affecting her ability to travel to New Zealand.
Notice of appeal
[24] An amended notice of appeal was filed by Ms Hart on 29 March 2016. It records:
Grounds for Appeal
1 That the decision is void for bias;
2 That the decision is void for apparent bias;
3 That the decision is void for pre-determination;
4That the Court erred in making findings of fact, such findings not being available on the evidence before the Court;
5 That parts of the decision were plainly wrong;
6 That the decision contains errors of fact and law;
7 That the decision takes into account irrelevant matters;
8 That the decision fails to take into account relevant matters;
9That the decision placed insufficient weight on the welfare and best interests of the children, including the needs for safe transition arrangements and safe interim custody arrangements;
10That the decision failed to adequately balance the welfare and rights of the children against its police of deterrence.
In particular:
11The circumstances might have led a fair-minded lay observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the case;
12The Court erred in failing to ensure that the appellant had a fair hearing;
13 The Court erred in finding that the appellant was aware of visa
issues and requirements “at least by 4 December last year”.
14The Court relied upon wrong and misleading advice provided by the US Consulate to the Court and the appellant. The appellant had been (poorly) advised by US Consulate staff to apply for an ESTA waiver, rather than an SB-01 visa. Relying on the Consulate’s incorrect advice, Mrs [Hall] applied for an ESTA waiver. The application was declined such that Mrs [Hall] was not authorised to travel to the US and could not have accompanied the children to the US.
15The Court erred in finding that the appellant “knew at an early stage there may have been issues about her remaining in the USA with the children long term”.
16The Court, finding that the appellant had had plenty of time to sort out her visa, overlooked the fact that the Christmas holiday period affected the availability of lawyers and legal advice and hence the appellant’s ability to obtain legal advice regarding visas.
17The Court indicated that (the discretion to allow Mrs [Hall] back into US after 6 months) “was likely to be granted” but that it was “less certain whether the mother will be granted an extension to her green card beyond 2016, but it is a matter for the US authorities to consider” (emphasis added). This suggests that the Court itself was acting in the (mistaken) belief that the appellant’s green card would be valid through 2016. In fact, Mrs [Hall] found out (after she had consented to return the children to US) that her visa had already expired on or about 6 December 2015.
18The appellant had not met with the US Consulate prior to consenting to return the children to US. Despite meeting with the US Consulate the appellant was not advised by the Consulate that her green card would expire 1 year from the date of departure from US (ahead of the expiry date shown on her green card being 26 September 2016).
19The Court erred in assuming the appellant had US visa knowledge which she did not and could not have had. The Court relied on incorrect and/or misleading information supplied by the US Consulate.
20When the appellant met with the US Consulate (alluded to in their own email), she was not advised to apply for an SB-1 visa, but was advised to travel on an ESTA waiver.
21The information provided by counsel for the Central Authority (supplied by the US Consulate) as to advice it purported to give the appellant and relied upon by the Court was incorrect and misleading.
22 The Court erred in its reference to an SB-2 visa application.
23The Court erred in giving priority to principles of deterrence (would- be abductors) rather than the interests of the children.
24The Court erred in finding that the mother had been the author of her situation.
25The Court erred in not making a decision to delay the children’s return until (safe) transitional arrangements were place and until the mother had obtained a satisfactory visa.
26The Court erred in failing to take into account the fact of the Police investigation when making its decision.
27The Court erred in its approach to the appellant’s concerns about the children’s safety in the care or under the control of the father.
28 The Court erred in declining to grant the order sought that the Police
provide a copy of the complainant child’s DVD Police interview.
29 The Court erred in issuing a warrant to uplift the children.
30The Court erred in failing to deal adequately, or at all, with the appellant’s application for deferment of the date for return of the children to the US.
31The Court erred in failing to give reasons or adequate reasons for its decision.
Jurisdiction
[25] It is common ground that the present appeal involves an appeal against the exercise of a discretion. In order for Mrs Hall to succeed on appeal, she must satisfy the Court that the Judge:4
(a) Acted on a wrong principle; or
(b) Did not take into account relevant factors; or
(c) Took into account irrelevant factors; or
(d) Was plainly wrong.
Statutory frame
[26] An order to remove or return children to their country of habitual residence is made pursuant to s 105 of the Act. That section states:
105 Application to Court for return of child abducted to New
Zealand
4 May v May (1982) 1 NZFLR 165 (CA).
(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.
…
[27] Once the removal order is made, the power to issue a warrant is conferred by s 119. This states:
119 Enforcing order for return of child
(1) If, in proceedings under section 105, a Court makes an order under section 105(2) for the return of a child, a Family Court or a District Court may, at any time, issue a warrant of the kind referred to in subsection (2), either on its own initiative or on an application for the purpose by a party to the proceedings.
(2) The warrant referred to in subsection (1) is a warrant that authorises any [constable] or any Social Worker or any other person named in the warrant to take possession of the child and to deliver the child to a person or authority named in the warrant for the purpose of returning the child in accordance with the order.
(3) The powers conferred on a Court by subsection (1) may, if the Court thinks fit, be exercised on the making of an order under section
105(2) for the return of a child.
….
[28] The threshold tests for the application of s 119 are discussed below at [31]–
[35].
The alleged errors
[29] I will deal with the appeal in two parts. First I will address the errors in the judgment claimed by Mrs Hall. Second I will separately address the claims of bias and predetermination.
[30] The errors alleged are noted at [24]. Ms Hart submitted in oral argument (in short):
(a) There was nothing in place to secure the safe transition of the children to the United States;
(b)The welfare of the children is a paramount consideration at all stages, including the enforcement stage;
(c) The Judge erred by deferring to and assuming that the Central Authority had taken, or will take care of, the safe transition of the children;
(d)The Judge erred by failing to have regard to the evidence showing that the children were at risk of harm;
(e) The Judge could not reasonably conclude, in the light of the evidence,
that the children’s safe transition was secured;
(f) The Judge should have deferred the issue of the warrant until such time as Mrs Hall obtained a visa or pending an application for permanent deferral in the event that Mrs Hall did not obtain a suitable visa.
Assessment
A jurisdictional hurdle
[31] The case for Mrs Hall erroneously assumes that the Judge possessed jurisdiction to permanently refuse to issue a warrant based on the alleged safety concerns. But that cannot be right in light of Butler v Craig.5 In that case the Court of Appeal examined at length the jurisdiction to enforce and or revoke a return order, observing:6
[42] We consider that a Family Court Judge could decline to make an enforcement order if a material change in circumstances had occurred since the order was made. The change would need to be of such significance that enforcement of the order would be pointless. An example of the type of exceptional circumstance in which a Court might decline to enforce a return order would be the death of the parent at whose instigation the order was sought.
[43] An example of the way in which the enforcement discretion might be exercised is KS v LS [2003] 3 NZLR 837. Delivering the judgment of a Full Court of the High Court, consisting of himself and Frater J, Priestley J said, in the context of the Guardianship Act 1968 equivalent to s 119:
[111] In the face of an abducting party being obdurate, s 26(1) of the Act permits a Family Court, either on application or on its own motion, to issue a warrant to enforce an order for return. If it became necessary to enforce the order, doubtless the Court would have appropriate regard to s 23(1) of the Guardianship Act 1968 and would have given some consideration to the least distressing time frame. Although s 23(3) expressly states that the provisions of Part I of the Act are not limited by s 23, it would nonetheless be permissible, provided the child's return to the state of habitual residence was not artificially or unnecessarily delayed, to issue a warrant but let it lie in Court for an appropriate period.
[112] Furthermore, in terms of the policy of the convention, the mechanism of a child's return is not a matter for judicial decision. It is instead an administrative matter. Section 7(1) designates the chief executive of the Department for Courts (the secretary) as the Central Authority for New Zealand. As such the secretary has all the duties and powers of a central authority under the convention. It is mandatory for him to perform all the functions of a central authority.
[113] Article 7 of the convention makes it mandatory for central authorities to cooperate with each other to secure the prompt return of children, and additionally empowers central authorities:
5 Butler v Craig [2008] NZCA 198.
6 At [42], [43], [54], [55] and [60].
(h) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child.”
The procedure adopted, in KS v LS, was to issue a warrant but to let it lie in Court for three weeks so that particular medical attention required by the parent in Australia could be administered: at [129] and [130].
[32] The Court also examined whether it possessed wider jurisdiction to revoke the return order. It found that it did not:
[54] We did not hear argument on whether any other jurisdiction might exist to discharge a return order. We have considered whether a jurisdiction could be implied to enable a Family Court to do so, on the basis that the discretion would be no wider than that conferred by s 119(1) of the Act. However tempting it might be to try to fill the statutory gap by creating such a jurisdiction, we consider that to do so would amount to an inappropriate usurpation of the Legislature’s functions.
[55] Nevertheless, we are concerned that, in exceptional cases involving material changes of circumstance, no jurisdiction to discharge a return order exists. If no enforcement application were made, the child would remain in New Zealand and the provisions of s 118(2)(b) might prevent a New Zealand based parent from taking the child out of the jurisdiction, even for a short holiday.
…
[60] In our view, any lacuna in the legislation can only be cured by Parliament. We would urge Parliament to consider urgently whether to enact legislation akin to that contained in reg 19A of the Australian regulations…
[33] Parliament’s response can be found at s 122A:
122A Discharge of order under section 105 for return of child
(1) This section applies where a court makes an order under section
105(2) for the return of a child (the return order).
(2) A party to the proceedings under section 105 in which the return order was made (the return proceedings) may apply to the court for the discharge of the return order.
(3) On an application under subsection (2), the court may discharge the return order if—
(a) the application is made not earlier than 1 year after the return order was made, or any appeal in relation to the return order was determined, and the court is satisfied that—
(i) the child is now settled in his or her new environment in New Zealand; and
(ii) having regard to all the circumstances of the case, the discharge of the return order is warranted; or
(b) every other person who was a party to the return proceedings consents.
[34] Given Butler, and the limited basis upon which a return order may be revoked, the final outcome sought by Mrs Hall was always unattainable.
[35] Turning to s 119, as stated in Butler, the Court may defer the execution of the warrant in exceptional circumstances, for example where the return would be pointless or, as occurred here, the children are not medically fit to travel. It may be that fresh incontrovertible evidence that travel to a certain location will place the children at risk of grave harm might also provide a proper basis for deferral, for example, the outbreak of war. I express no final view on that. I prefer to think that the Central Authority acting rationally would not seek a warrant in such circumstances. In any event, these cases will be very rare. The clear scheme of this part of the Act is to secure the speedy return of the children once a return order is
made.7
[36] Applying the information8 supplied by Ms Hart in support of deferral afresh, including the new police material, the case for deferral falls well below the exceptional threshold. Only a weak evidential basis for risk of harm to the children has been offered to support the deferral to an unknown future date. While the absence of Mrs Hall is unfortunate, the paternal grandmother is available to take the children to the United States and there is nothing before me of substance to suggest that she will not provide the requisite care of the children. The evidence of sexual abuse is, at present, a bare allegation only. The police in Kansas (being the father’s place of residence) have been or will be advised of the allegation and there is nothing to suggest that the agencies in the United States will not provide the requisite
protection, if necessary, to prevent any further abuse.
7 See Secretary for Justice v HJ, above n 3, at [40].
8 I allowed the DVD interview evidence to be produced on a provisional basis, namely if I find
that the Judge possessed jurisdiction to take into account safety concerns, then I would have regard to it. Conversely if I did not consider that there was jurisdiction I would not admit the DVD evidence. As I have come to the view that the Court has at least some jurisdiction to take into account safety of a child for the purpose of safe passage, evidence on the issue of safety is prima facie admissible.
[37] In my view, therefore, there is no proper basis to defer the execution of the warrant to an unspecified date as sought by Ms Hart. Given, however, the care taken by Ms Hart to pursue this appeal, I will briefly examine the alleged errors claimed by Mrs Hall.
Nothing in place to secure safety
[38] The combination of the oversight afforded by the Central Authority together with the availability of the grandmother provided ample basis for the Judge to conclude that safe passage could be secured for the children.
Welfare of the children a paramount consideration
[39] The paramountcy principle is relevant to every stage of the return process, including enforcement.9 But the application of the principle is not acontextual. It cannot limit the duty to order return in terms of s 105 when no ground for refusing to do so can be invoked.10 The presumption for the purposes of enforcement must be that the responsibility to decide what is best for the child’s future rests with the authority in the country of habitual residence.11 The residual issue is simply whether the transition can be safely achieved at the time of the warrant.
[40] In this case, the Judge plainly had the welfare of the children in mind, applying the weighing exercise mandated by the Supreme Court in HJ:12
What is clear from s 4(4) is that, while the paramountcy principle set out in s
4(1) does not limit the effect of the Act relating to the Hague Convention,
this Court is entitled to take account of matters relevant to the children’s
welfare and best interests.
[41] I see no error of principle in this approach.
9 Secretary for Justice v HJ, above n 3.
10 At [48]
11 At [41]
12 PGF v JVF, above n 2, at [39].
The Judge erred by deferring to and assuming that the Central Authority had taken or will take care of the safe transition of the children
[42] The Judge is a specialist on Hague Convention matters.13 His assumption that the Central Authority will take care of the children is also supported by authority.14 I have no reason to doubt his specialist experience in this area, and nothing presented by Ms Hart provides a sufficient basis for me to question his judgment on this aspect.
Mrs Hall’s concerns about her son having Asperger’s syndrome and the placement of the children in the United States are not such as to demand deferral of the warrant. There is no evidence to support a finding that these are matters beyond the competency of the Central Authority to address. It is also a misnomer to suggest that he deferred to the Central Authority. His judgment reveals that he turned his mind to the issue of the children’s safe passage, evaluated the risks to the children and was satisfied that the Central Authority would exercise its discretion wisely. That is a conclusion that was available to him on the evidence.
The Judge erred by failing to have regard to the evidence showing that the children were at risk of harm
[43] The Judge was plainly sceptical about the new, belated evidence of harm to the children. The Judge did not consider it was necessary to listen to audio recordings referred to in Mrs Hall’s evidence and refused to grant the order sought that the Police provide a copy of the complainant child’s DVD Police interview on the basis that the mother had had plenty of time to attend to this evidence. This is problematic because the Judge’s assessment of the time available to Mrs Hall to produce the DVD may have been unduly negative.
[44] But none of this means that the Judge failed to have regard to the allegations of abuse and the potential for harm. He plainly did at [25] and [32] of the judgment.
The Judge formed the view that the evidence was insufficient to support the claims
13 See, for example, Robert Ludbrook and Lex de Jong Care of Children in New Zealand (Brookers, Wellington, 2005); Margaret Casey and Lex de Jong International Issues for Family Lawyers (New Zealand Law Society, Wellington, 2003); Margaret Casey and Lex de Jong Hague Convention on Civil Aspects of Child Abduction (New Zealand Law Society, Wellington,
1995).
14 KS v LS [2003] 3 NZLR 837 (HC).
and that the previous allegations directed against the father had been considered and dealt with in the October judgment. He also expressed concern about the mother’s role in the proceedings and took into account the plan by the New Zealand Police to refer their files to their counterparts in the United States. These findings were available to him and the audio or DVD recordings of the allegations of abuse add little by way of probative value – they serve simply to confirm that the allegations were made, which was never doubted by the Judge. The reference to the plan to refer the police files to the United States then confirms that the Judge directed his mind to the safety of the children in the United States, notwithstanding his apparent scepticism about the allegations.
The Judge could not reasonably conclude, in light of the evidence, that the children’s
safe transition was secured
[45] I have addressed the substance of this issue above at [41] - [42]. Furthermore, as the Court of Appeal stated in A v A:15
An order returning a child to another jurisdiction is not an order returning a child to a parent, and the child remains the responsibility in the first instance of the Central Authority of that other jurisdiction. All a Court appropriately can do in a case such as the present is to draw to the attention of the Central Authorities and the Courts of the other jurisdiction the particular matters of concern relevant to the best interests of the child of which it is aware.
The Judge should have deferred the issue of the warrant until such time as Mrs Hall obtained a visa or pending an application for permanent deferral in the event that Mrs Hall did not obtain a suitable visa
[46] For the reasons expressed at [36]–[38] and [40]–[45], there was no proper basis for the Judge to defer the warrant indefinitely and to do so would have undermined the clear policy of the legislation. Ms Hart nevertheless sought to persuade me that I should adopt the approach set out in the Convention on Jurisdiction, Applicable Law, Enforcement and Co-operation in Respect of Parental
Responsibility and Protection of Children. Article 11(1) provides:
15 A v A (1996) 14 FRNZ 348 (CA) at 356.
(1) In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection.
(2) The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken the measures required by the situation.
(3) The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State shall lapse in each Contracting State as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question.
[47] As Ms Hart submits, this caters for the country of non-habitual residence to put measures in place to protect the safety of children until the country of habitual residence can take over the jurisdiction. While this Convention has not been ratified in New Zealand, Ms Hart submitted that the Judge had not only jurisdiction, but an obligation, to ensure that the Central Authority put in place appropriate measures to address the risks and interim change over arrangements identified by the appellant.
[48] I acknowledge the underlying force of these submissions – the international community now requires that the country of non-habitual residence puts in place protective measures until the authorities in the country of habitual residence has clearly assumed responsibility. But this is not a novel issue, and is a matter for Parliament, as the dicta on Butler shows. The gateway afforded by s 119 is simply too small to accommodate the breadth of power required to develop and then impose such protective measures.
Outcome of error analysis
[49] I can find no obvious error in the approach taken by the Judge, and indeed, I am satisfied having had the benefit of the information sought to be adduced by Mrs Hall, that there is no proper basis to provide the relief sought by Mrs Hall, namely the indefinite deferral of the issue of the warrant pending the resolution of her visa application.
Judicial bias
[50] Given my analysis and conclusion at [49] it is not necessary to address the claim to judicial bias. However, given the significance of this claim, I propose to address it, albeit briefly.
[51] The central complaint is that the Judge, having strongly chastised counsel and the approach taken by Mrs Hall to the return process, appeared to have closed his mind to the merits of her claims.
[52] The threshold test for bias was recently stated in Saxmere Co Ltd v Wool
Board Disestablishment Co Ltd.16 A Judge will be disqualified if:17
…a fair minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide.
[53] This requires a two step inquiry:18
(a) First, the identification of what was said that might lead a Judge to decide a case other than on its legal and factual merits; and
(b)Second, an “articulation of the logical connection between the matter and feared deviation from the course of deciding the case on its merits”.
Assessment
[54] I attach to this judgment the appellant’s summary of the conduct of the Judge said to demonstrate bias. I accept that the Judge’s comments in the hearing were harsh, at times, and may have led Mrs Hall to think that he had no interest in her point of view. The decision to exclude consideration of the audio material and the
Police DVD also appeared pre-emptory. But unlike several of the authorities19 cited
16 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1
NZLR 35.
17 At [3].
18 At [4].
19 Nazarewycz v Dool & Anor [2009] ABCA 70 (Alberta Court of Appeal); Calvert Home Mortgage Investment Corp v Ro/Lin Holdings [2007] ABCA 259, 79 Alta LR (4th) 278; R v Ontario Corporation 844781 & Ors Ontario Court of Justice No. 95-1601, 4 December 1996.
to me by Ms Hart, the Judge did afford Ms Hart ample opportunity to state Mrs Hall’s case in the hearing, addressed her point of view in the judgment and provided a cogent explanation for rejecting it. To illustrate:
(a) The main points of concern were ventilated before the Judge, including an opportunity to present supporting legal argument;
(b)The arguments for Mrs Hall are faithfully summarised at [23]-[26] of the judgment;
(c) The reasons for rejecting them are clearly stated at [16], [33], [35], [37]-[41];
(d) Empathy for Mrs Hall’s position is expressed at [42] and [43].
[55] As to criticisms of counsel, Ms Hart quite properly conceded that the Judge’s conduct was not such that she felt it necessary to make a personal complaint, but that the matters had to be raised to secure fairness for Mrs Hall. I accept that the raising of the issue was properly done, given the nature and tone of some of the comments made by the Judge. The tenacity of counsel in so doing should not be a matter for
criticism.20 But when the full picture of the Judge’s conduct is considered in context,
including the background to the applications and their last minute nature, a very busy Judge, the steps taken to accommodate urgent telephone conferences and a urgent hearing, the Court’s limited jurisdiction, the care in fact taken to hear the appellant’s claims, together with a well reasoned and demonstrably fair judgment, the complaint about bias and predetermination is not made out. In short, a fair minded observer, apprised of the full context, would not apprehend that the Judge failed to bring an impartial mind to the resolution of the question to decide.
[56] I therefore reject the claim based on judicial bias and predetermination.
20 But one matter of concern is that Ms Hart presented this part of the argument. She had arranged counsel to present it, but the timing of the hearing precluded this. This was unfortunate because it made the inquiry difficult, particularly when issues of counsel’s conduct came into frame. I did not adjourn the matter given the need to have the appeal resolved as quickly as possible.
Outcome
[57] The appeal is dismissed. I join with the Judge in observing that, if possible, it would be preferable for the children to travel with their mother to the United States. I understand that there is a strong prospect of a visa now being issued. The Central Authority could not be criticised for waiting a short time to enable the visa process to be completed.
APPENDIX
The circumstances having a direct bearing on whether the Judge may be seen to have appeared biased
1.2.The appellant’s submission that the Family Court decision is void for apparent bias stems from the learned Family Court Judge’s conduct at the hearing on 27 January 2016.
1.3. The conduct of the learned Judge that is submitted to show bias includes:
1.3.1Making adverse comments about counsel for appellant (A Hart), not addressed to her, but to other counsel as if she were not present (“I’m used to Ms Hart filing submissions late, documents late and in an unorthodox fashion”) [page 1, lines 10-13]
1.3.2Accepting as true and acting upon Mr Maskell’s statement (that he had not received appellant counsel’s affidavit until just before the hearing (2:15 pm) [page 2, lines 5-11] without hearing from appellant’s counsel as to when the affidavit was actually filed and actually served. (“That makes it even worse”);
1.3.3Excessively interrupting counsel for the appellant, preventing her from achieving continuity in oral submissions or concentrating on submissions at all;
1.3.4 Accusing counsel for the appellant, in open Court, of “pulling the
wool over” his eyes;
1.3.5Refusing to consider evidence that was filed in accordance with the Court’s directions, saying “I don’t plan to do that because we had the same kind of evidence at the October hearing, so.” [Page 4, lines
9-10];
1.3.6Admitting counsel for the respondent’s new evidence (not in affidavit form and not notified to appellant’s counsel) after the hearing had started, without adverse comment and without hearing from counsel for the appellant [Page 2, lines 19-21, and Page 3, lines 7-9];
1.3.7 Giving priority to hearing the NZ Central Authority’s application first
[Page 5, lines 15-20];
1.3.8 Demonstrating that he had not read the appellant’s evidence by haranguing appellant’s counsel (A Hart) about a lack of evidence as to when the police evidential interview took place, when it was pointed out in the affidavit that the interview took place in early January 2016 [Pages 13-15];
1.3.9Page 17, lines 5-11. Making adverse comments to counsel for appellant that were not related to the case before the Court (“I can go through a list of them, but I’m not going to detain these two for that purpose. I’m happy to meet with you separately to go over it because something needs to happen in terms of your approach to the Court because its not only this case …);
1.3.10 TheJudge indicated by his conduct that his position was pre- determined and that he had brought a closed mind to issues concerning safety of the children (“I don’t plan to do that” (consider the audio/visual evidence) Page 4, lines 9-10;
1.3.11 Accepting Ms Soljan’s statement that she had not received the affidavit until 11:30 as if that was the actual time of sending, without inviting appellant’s counsel to comment [Page 2, lines 14-15];
1.3.12Interrupting A Hart’s submissions, repeatedly challenging how the appellant’s application for a visa had been filed, implying that there was some doubt as to whether counsel was being truthful in saying it had been lodged (Page 10, lines 7-20);
1.3.13Page 15, lines 2-4. “It’s a bit like on the 15th of January when you ran around filing a whole lot of documents trying to make your client’s problem everyone else’s.”;
1.3.14Page 17, lines 6-11. Stating in open Court during the hearing that “something needs to happen in terms of your approach to the Court because its not only in this case” about counsel (A Hart);
1.3.15Page 20, lines 12-26. “So we’re talking about the vibe are we? … Yes. When the lawyer talks about the vibe … Do you know the movie the Castle? Have you seen that?” Indicating, by innuendo and analogy with the movie “The Castle” that counsel was ignorant and incompetent as counsel.21
1.3.16 The front page of the judgment states: “warrant to uplift”. There is
no reference to the application made by the appellant.
1.4.The criticisms were not limited to a single episode during the hearing. The Judge maintained a discourteous, dismissive and scathing attitude towards counsel for the appellant and made serious allegations throughout the hearing.
1.5An indication that the learned Judge had pre-determined the case was that he made it clear that he was in a position to print out his orders at the end of the hearing. Either he was not in full attendance/listening to counsel during the hearing or he had already prepared the orders [Page 30, lines 15-20].
21 “The Castle” – see excerpt on youtube “It’s the vibe of the thing”.
The second part of the test for bias, or apparent bias is to ask:
Whether the circumstances might have led a fair-minded lay observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the case
1.6It is submitted that the learned Judge’s animosity went well beyond an acceptable level of criticism of counsel, especially in circumstances where an observer is likely to have assumed that the criticisms were justified, irrespective of the reality.
1.7Counsel does not accept that the criticisms were justified, but in any event, it is submitted that the truth of matters is not the determining issue in respect of bias.22
1.8One of the comments that indicates strong bias is the Judge’s description of counsel’s legal proceedings filed on 14 and 15 January 2016. His Honour said (of counsel) “you ran around filing a whole lot of documents trying to make your client’s problem everyone else’s”. This shows that the Judge brought a negative and emotive attitude to the hearing on 27 January, in terms of both client and counsel.
1.9The Judge’s criticisms of counsel in open Court included reference to other cases, not just the one before the Court. It is submitted that the Judge’s pre- existing negative views against counsel were at such an extreme level of intensity that they predominated in the hearing, to the detriment of the client’s case.
22 Nazarewycz v Dool [2009] ABCA 70 (where the Judge did not give opportunity to be heard on comments and referred to other proceedings) pages 15-16, paras 74-76.
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