IA v RRN

[2017] NZHC 1268

PUBLICATION OF THE NAME(S) OR IDENTIFYING PARTICULAR(S) OF THE PARTY(IES) TO THIS PROCEEDING OR THE CHILD/CHILDREN WHO ARE THE SUBJECT OF THIS PROCEEDING IS PROHIBITED UNDER S 139 OF THE CARE OF CHILDREN ACT 2004, AND S 11B(3) OF THE FAMILY COURTS ACT 1980 EXCEPT AS PERMITTED BY S 11B(4)

OF THE FAMILY COURTS ACT 1980. THESE PROVISIONS GENERALLY PROHIBIT THE PUBLICATION OF IDENTIFYING DETAILS EXCEPT IN CERTAIN CIRCUMSTANCES IN PROFESSIONAL AND TECHNICAL PUBLICATIONS OR BY LEAVE OF A JUDGE.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-003138 [2017] NZHC 1268

UNDER	Care of Children Act 2004
IN THE MATTER	of Application for Leave to Appeal Against a Judgment of the Family Court under section 143(2) of the Care of Children Act 2004
BETWEEN	IA Appellant
AND	RRN Respondent

Hearing:	On the papers
Counsel:	S Sharma for the Appellant G M Cameron for the Respondent P Leʼauʼanae for the Child
Judgment:	12 June 2017

JUDGMENT OF MUIR J

This judgment was delivered by me on Monday 12 June 2017 at 11.00 am Pursuant to Rule 11.5 of the

High court Rules.

Registrar/Deputy Registrar  Date:…………………………

IA v RRN [2017] NZHC 1268 [12 June 2017]

Background

[1]      On  1  December  2014  the  Family  Court  at  Auckland  made  orders  for relocation of the parties’ son “I”, now aged nine, from Auckland to Sydney Australia. That order was made on a without notice application.  The Minute made by Judge Boshier was in terms:

The applicant seeks permission to relocate to Australia.  It is rare to contemplate this  ex  parte, but  so  concerned  am  I as  to  violence, control and retribution that I consider it risky to direct this to proceed on notice.  That application is granted.

[2]      The matter came before me on 3 May 2017 by way of an appeal from that order.

[3]      Prior to  the  hearing,  Mr Cameron  for the respondent  filed  a submission accepting that, if the Family Court’s order was made on a final basis, there was no jurisdiction for it to do so on a without notice application.

[4]      It is apparent from other interim and temporary orders made by the Court that day (and identified as such) that the relocation order was indeed intended to be final. To do so on any other basis would in any event be highly unusual, given that once a child is relocated to another country issues of continuity of residence in that jurisdiction  will  arise  which  will,  in  turn,  inevitably  influence  any  later  final decision.  Mr Cameron’s concession is therefore entirely responsible.

The Family Court Rules

[5]      The matter is governed by rr 416H and 416J of the Family Court Rules 2002. Rule 416J allows the making of interim orders on a without notice application in which case the Court must direct that the application proceed to a full hearing in accordance with r 416U.

[6]      Significantly however, r 416J provides that a final order can only be made on a without notice application if the application is made under r 416H(c), (d) or (e), namely if:

(c)       the application affects the applicant only, is in respect of a routine matter, or is about a matter that does not affect the interests of any other person; or

(d)       every person in respect of whom the order is sought has either died or cannot be found; or

(e)       the application is made under 1 of the following:

(i)        section  76  of  the  Act  (authority  to  use  faxed  copy  of warrant):

(ii)       section 77 of the Act (preventing removal of child from

New Zealand):

(iii)     section 143(5) of the Act (order dispensing with security for appeal costs).

[7]      Neither rr 416H (c), d) or (e) applied in the present case.  In the result, if the Family Court’s order is regarded as final (as I consider it to be) it was made without jurisdiction. As Mr Cameron states in his memorandum “it may be difficult to argue otherwise”.

The hearing on 3 May 2017

[8]     I indicated when the matter came before me on 3 May that in those circumstances I was likely to allow the appeal.  All parties requested, however, that the matter be adjourned to consider their position further and, in particular, what consequential orders the Court should make.

[9]      In the minute I dictated at the conclusion of that hearing, I referred to earlier promising indications that the parties might resolve their differences but to the fact this was now unlikely.  I also noted that, if the appeal was allowed, IA now reserved the right to bring proceedings (most likely in New South Wales under the Hague Convention) for return of “I” to New Zealand.  I noted that this was an unfortunate outcome and suggested that IA may wish to reflect further on the fact that his son had  now  lived  in Australia  for  in  excess  of  two  years,  was  in  a  stable  family environment and wished to remain in Australia.  I also suggested he reflect on the

advice of counsel for the child (Mr Le’au’anae) that he did not consider it in “I’s”

best interests to have him returned to New Zealand.

[10]     I adjourned the matter to Wednesday 14 June 2017 for counsel and the parties to consider their position further.

Subsequent advices to the Court

[11]     I have now received a further affidavit of IA and a detailed memorandum by counsel for RRN.

[12]     In his affidavit IA confirms that he “wants to keep [his] options open to

pursue a Hague Convention applicant (sic) in Australia in the future”.

[13]     For her part RRN says that, although reluctantly she must accept that the decision of the Family Court permitting her relocation to Australia may have been made without jurisdiction, nevertheless she proceeded in the belief it was a valid order of the Court and has relied on it in the interim.  She has said that she has now engaged solicitors in Sydney who are “implementing instructions to commence application for a parenting order in the Family Court of Australia”.  She says that insofar as there are any live proceedings in the Family Court in New Zealand in which she is the applicant, she will now discontinue the same and that she will in future protest the jurisdiction of the New Zealand Family Court and assert that the proper forum is the Family Court in New South Wales Australia.  She says further that until proper protections are in place she will not be returning “I” to Auckland, although she will actively co-operate in ongoing and enhanced contact with his father in Australia.

[14]     No particular orders consequential on my allowing the appeal are now sought by any party under High Court Rule 20.19(1)(c).

Result

[15]     I allow the appeal with the result that the Family Court’s order granting

permission to relocate “I” to Australia is set aside.

Costs

[16]     In his affidavit dated 24 May 2017 IA says that he wishes to pursue costs on the appeal and on his former application for leave.   Mr Cameron’s memorandum says that any such application “will be strenuously opposed”.

[17]     If IA intends to pursue this application then the following timetable applies: (a)           Submissions in support are to be filed and served by 28 June 2017. (b)           Submissions in opposition are to be filed and served by 7 July 2017. (c)       Any submissions in reply are to be filed by 14 July 2017.

[18]   The circumstances of this case are unusual, particularly given that the jurisdictional  error  on  which  my  decision  is  based  was  not  identified  in  the appellant’s  notice of appeal and  was  only developed in subsequent submissions (which were in turn accepted by Mr Cameron in advance of the hearing on 3 May). These and related considerations may impact on the usual incidence of costs.

[19]     Any   counsel   requiring   to   be   heard   should   indicate   such   in   their memorandum.

Vacation of fixture on 14 June 2017

[20]     IA proposes that the resumed hearing on 14 June 2017 be vacated and that I proceed to give judgment on the papers.  Neither Mr Cameron nor counsel for “I” oppose that course.

[21]     I accordingly issue my judgment on the papers and vacate the hearing.

Muir J

Counsel/Solicitors:

S Sharma, Barrister, Henderson

G M Cameron, Barrister, Auckland

P Le’au’anae, Barrister, Manukau City