K v P CA230/03

[2004] NZCA 384

PUBLICATION PROHIBITED EXCEPT AS PERMITTED BY S27A GUARDIANSHIP ACT 1968

IN THE COURT OF APPEAL OF NEW ZEALAND

CA230/03

BETWEEN  [S K]

Appellant

AND  [K P]

Respondent

Hearing:         15 March 2004

Coram:McGrath J William Young J O'Regan J

Appearances: A E L Ivory for Appellant

G M Cameron for Respondent Judgment:  22 March 2004

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1]                 This is  an  application  for  leave  to  appeal  against  the  decision  of Rodney Hansen J dated 11 November 2003 in which he dismissed an appeal by the intended appellant Mr [K]   against  a  decision  of  a  Family  Court  Judge,  Judge Aubin, dated 7 November 2002.

[2]                 Mr [K]  had applied to the Family Court, under the Guardianship Amendment Act 1991, for an order that his children, [S]  and [L]  be returned to Chicago, Illinois, United States of America under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). That order was declined in the Family Court and Mr [K]  appealed to the High Court. In the High Court, Mr [K]  abandoned his contention in relation to [L]  (who had been born and lived her entire life in New Zealand), but contended that the

[S K]  V [K P]  CA CA230/03 [22 March 2004]

Family Court Judge was wrong to have declined to make an order in relation to [S] . Rodney Hansen J dismissed the appeal.

[3]                 The intended respondent, Ms [P] , is the mother of [S] and [L]. She and Mr [K]  met in 1993 and started living together in Chicago in 1995. They married in Scotland in 1998. [S]  was born in Chicago in July 2000. Ms [P]   and  [S]   spent  the  period  between  December  2000  and   May   2001   in New Zealand with Mr [K] ’s agreement. Mr [K]  visited them in New Zealand twice during that period.  Ms  [P]   and  [S]   then  returned  to  Chicago  and Ms [P]  again became pregnant. She and [S]  came back to New Zealand in November 2001 with Mr [K] ’s agreement. She had a  return  air  ticket  for  March 2002 but did not return to Chicago at that stage. Mr [K]  visited his wife in New Zealand around Christmas 2001. The  second  child  [L] ,  was  born  in April 2002, and Mr [K]  visited New Zealand again in May 2002, June/July 2002 and August/September 2002. By September 2002 it was clear that Ms [P]  did not intend to return with the children to Chicago and Mr [K]  then commenced his proceedings in October 2002.

[4]                 In both the Family Court and the High Court it was found that the habitual residence of [S]  at the time that he was brought to New Zealand in November 2001 was Illinois. It was also found that Mr [K]  had not agreed to any change in [S] ’s habitual residence and had  not  acquiesced  in  his  being  retained  in  New Zealand. However, the Family Court Judge found that Mr [K]  had not discharged the onus of proving that [S] ’s habitual place of residence was Illinois at the relevant time which was September 2002. The Family Court Judge found that New Zealand had not become [S] ’s permanent place of residence either, but added that in view of the passage of time and events since [S]  had arrived in New Zealand in November 2001, it could no longer be said that Illinois remained his habitual place of residence.

[5]                 In the High Court, Rodney Hansen J upheld the Family Court Judge’s reasoning. He found that by September 2002, [S] ’s connection with Illinois could not realistically be described as customary, constant or continual and that his habitual residence was no longer in Illinois. The Judge rejected the contention made

on behalf of Mr [K]  that [S] ’s habitual residence could not change unless there has been a settled intention of both parents that [S]  remain permanently in New  Zealand.  The Judge  found that there was no agreement by Mr [K]   and  Ms [P]  to abandon Illinois as [S] ’s place of habitual place of residence, but that there had been agreement on a change of living arrangements which, by September 2002 had brought about that result. Thus, [S]  had ceased to be habitually resident in Illinois even though he had not at that time become a habitual resident of New Zealand.

[6]                 The application is made under s31B(1)(b) Guardianship Act 1968 which, at the time this application was made, provided for an appeal to this Court only on a question of law and with the leave of this Court. The requirement that an appeal be on a question of law has now been removed.

[7]                 In this Court, Mr Ivory argued on behalf of Mr [K]  that it was appropriate for leave to be granted to appeal, because the issues which would be determined on the appeal involve important points of principle in relation to the Hague Convention. He framed the principles which ought to be reconsidered in this court as follows:

(a)That a child’s habitual residence in one country may be lost before that child acquires habitual residence in another country, where no settled mutual intent of both parents exists;

(b)That a child’s place of habitual residence may be lost notwithstanding one parent’s continuing intention that that place should continue as  the place of habitual residence of that child, and notwithstanding that no other habitual residence has been acquired by the child.

[8]                 Mr Ivory submitted that the legal test which ought to apply in the situation which has given rise to this appeal is as follows:

That, where there is no settled mutual intent of both parents to abandon a child’s existing habitual residence, then it will not be lost unless the objective facts point unequivocally to a person’s ordinary or habitual residence be in a particular place, i.e unless another habitual residence has replaced it.

[9]                 Mr Ivory submitted that Rodney Hansen J had incorrectly applied the test set out in a decision of the United States Court of Appeals, 9th Circuit in Mozes v Mozes 239 F.3d 1067 (2001). The Mozes decision was referred to with approval in this Court in P v Secretary for Justice, ex parte P, CA111/03, 19 December 2003.

[10]              On behalf of Ms [P] , Mr Cameron referred to the decision of Stadniczenko v Stadniczenko, [1995] NZFLR 493 in which this court when considering a similar appeal provision said that an applicant must show good cause why leave should be given. The court added (at p496):

That would arise where the appeal would raise some question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.

[11]              Mr Cameron argued that the High Court decision could be supported on the basis of certain extracts from the decision in the Mozes case and also to the leading work on the Hague Convention, Beaumont and McEleavy, The Hague Convention on International Child Abduction Oxford, 1999 Chapter 7. He argued there was therefore no justification for granting leave in this case.

[12]              We are satisfied that the questions of the law formulated by Mr Ivory in his submissions are questions of law of public importance capable of bona fide and serious argument. While we accept that allowing a further appeal will cause ongoing uncertainty for Ms [P]  and [S] , we are satisfied that this is a case involving public and private interests of sufficient importance to outweigh the cost and delay  of a further appeal. We therefore  grant leave to Mr [K]  to appeal against the  High Court decision.

Solicitors:

Wendy Galvin Law, Auckland for Appellant Jackson Russell, Auckland for Respondent