M v M

[2012] NZHC 639

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2012-412-60 [2012] NZHC 639

UNDER  the Care of Children Act 2004

IN THE MATTER OF     an appeal against a decision of the Family

Court at Dunedin

BETWEEN  M Appellant

ANDM Respondent

Hearing:         2 April 2012

(Heard at Wellington)

Counsel:         S van Bohemen for Appellant

L Harrison for Respondent

G J de Courcy for Child (by memorandum) Judgment:  2 April 2012

JUDGMENT OF MILLER J

[1]      This  judgment  responds  to  an  interlocutory  application  to  call  further evidence on an appeal from the Family Court, which ordered on 28 October 2011 that P, born on 24 March 2001, be returned to the United States of America.[1]

[1] Section 105 Care of Children Act 2004.

[2]      The appeal is to be heard on 17 April at Dunedin.  The application was to be argued with the appeal, but I brought it forward because the respondent advised that

should some of the evidence be admitted she would want to call rebuttal evidence.

M V M HC DUN CIV-2012-412-60 [2 April 2012]

[3]      The appellant, P’s father, removed P from the USA contrary to the terms of an access order.  An application having been made under the Hague Convention, he asked the Family Court judgment to refuse to order P’s return, invoking s 106(1)(c) and (d) of the Care of Children Act.   He failed on all grounds.   The appeal is confined to subsection (d), which allows the Court to refuse return where the child objects and has attained an age and degree of maturity at which it is appropriate to give weight to the child’s views.

[4]      The Family Court did not appoint an expert to consider how return might affect the child, the Judge expressing concern that such report would delay the hearing.   I understand that the Judge also knew that the appellant had briefed a psychologist, Ms Berry.   Counsel for the child was given a specific brief which included ascertaining P’s views and, if P objected to returning, finding out why.

[5]      The Judge interviewed P on 14 October 2011, and a transcript of the hearing was given to the parties on the same day.  In interview P made it clear that he wants to remain in New Zealand.  The hearing was held on 26 October.  Ms Berry gave evidence.  No issue was taken with the content or style of the judicial interview.

[6]      In his judgment the Judge decided that P’s views ought to be given some weight.  However, he discounted P’s reasons as trite or vague, lacking cogency.  An example of the former is P’s advice that he wanted to stay in Dunedin because the weather is better.   An example of the latter is P’s failure to give substance to a general allegation that the respondent hits him, beyond one allegation that she pulled his ear.

[7]      Ms Berry’s evidence was accepted by the Judge to the extent that she found P has a degree of maturity but on another aspect of the case, allegations of abuse by the respondent, the Judge criticised Ms Berry in clear terms, finding that she had not considered a wealth of material from the Oregon court and that she had not justified her diagnosis of post-traumatic stress disorder.

[8]      Three affidavits have been tendered:  from the appellant;  from D, an older sibling of P’s who also lives in Dunedin;   and from Ms Berry.   Much of this evidence relates to events post-hearing.

[9]      The appellant and D depose to P’s reaction to the Family Court decision.  The appellant says that the Judge gave insufficient weight to P’s objections.  P reported later that he felt very nervous in the interview, and the appellant expresses the opinion that this explains P’s vagueness.  He says that P has been very upset by the decision; he has been reduced to tears and reports being scared.  P is adamant that he will not go back.   He has been upset by the respondent’s decision to post P on a missing persons network in the USA.  I observe that the screen shot of that posting has details of both the appellant and P, and it records that a felony warrant has been issued  for  the  respondent.    There  is  evidence  elsewhere  in  the  record  that  the appellant will be arrested should he return to the USA.  The appellant also says that the respondent does not communicate with P.

[10]     D, who is 17, says that P was upset and is definite that he does not want to go back.   She says that the respondent hurt her when she was younger, and she has discussed this with P.  When she did so, he said that it was a relief to hear her talk. This is said to be consistent with his account, already in the record, that he has been abused by the respondent.

[11]     Ms Berry has examined the transcript of the Judge’s interview with P and critiques it.  She accepts that P’s reasons for staying in New Zealand were trite and unconvincing, but puts that down to the Judge’s inexpert interviewing technique. She points out that children are more likely to disclose in a group setting and after multiple interviews, and it is not productive to ask them direct or closed questions as the Judge is said to have done.

[12]     The application is governed by r 20.16 of the High Court Rules.   Special reasons must be shown.  The appellant must ordinarily show that the evidence could not have been led at first instance, and is material to the appellate Court’s decision. In care of children litigation the Court commonly hears updating evidence, taking a less restrictive approach than in other appeals.  However, Hague Convention cases differ in that the Court’s task is not that of deciding, by reference to the child’s welfare, with which parent the child should live.

[13]     In this case, the evidence is all said to be relevant to the exercise of the Court’s discretion under s 106, should I find that the grounds for the application are made out.  It is clear, however, that the evidence is relied upon more generally, to detract from the Judge’s reliance upon the trite and vague reasons that P gave in interview for wanting to remain in Dunedin.

The appellant’s and D’s affidavits

[14]     The evidence about P’s reaction to the decision plainly could not have been led at first instance.   The real question is whether it is cogent.   I do not find it sufficiently cogent to warrant admission.  It is entirely predictable that P would be upset by the decision.  He now appears to be settled in Dunedin, and he cannot fail to appreciate that his return to the USA will disrupt a family unit here.   The Family Court Judge accepted that P wants to remain in Dunedin, and the evidence adds nothing material to that finding.

[15]     D’s evidence that she was abused by the respondent when younger is not fresh and adds nothing to what is already in the record.  I infer that the reason for mentioning it here is as indirect confirmation that P too was abused.  To the extent that it is tendered for that purpose, it cannot possibly be considered reliable.   I observe that the Judge did not accept D’s evidence, partly because there is a letter on record in which she gives a different and much more positive account of life with the respondent.

[16]     The appellant’s evidence that he has employment and immigration prospects here does not take the Court far, as Mr van Bohemem conceded.   It would matter only if the decision turned on the discretion and there was evidence that P might be worse  off  here  because  the  appellant  lacks  residency  or  employment  in  New Zealand.  I do not understand it to be in issue that the appellant, who is an academic, can live and work in this country.  Nor do I find the allegation that the respondent does not communicate with P fresh, although some of the particulars are.

[17]     I am not prepared to admit any of this evidence.

Ms Berry’s evidence

[18]     Ms Berry’s evidence goes to the weight that should be attached to the judicial interview and the conclusions drawn from it in the Family Court.  In essence, she would have me accept that the Judge’s technique was suspect, so I ought to discount P’s expressed reasons for wanting to remain and with them the Judge’s evaluation of P’s preference.  Mr van Bohemem will argue that I ought to rely instead on other material in the record which, he submits, will allow the appellant to discharge his burden under s 106(1)(d).

[19]     I accept that Ms Berry’s evidence is relevant.  The Judge in this case chose to conduct  an  evidential  or fact-finding interview  rather than the ‘meet  and  greet’ interview which Family Court Judges sometimes opt for on these occasions.   The pros and cons of such interviews were discussed in the very helpful decision of

Judge Murfitt in S v S.[2]    As with any evidential interview, it must be open to the

parties to challenge what was said on the ground that the interviewer used inappropriate techniques, or to challenge the inferences that may be drawn from answers.  In saying that, I am not to be taken as accepting that the Judge erred here; that remains to be seen.

[2] S v S [2009] NZFLR 108.

[20]     However, I am not prepared to admit the evidence in this case, for two reasons.   First, it could have been called  at first instance.   The Judge sensibly

followed the practice of giving the parties a transcript.  Ms Berry could and should have offered her critique at the hearing, 12 days later.  Second, the evidence is not essential.  Counsel for the child usually spends some time with the child and has an opportunity to gain his or her trust, so counsel is generally the most reliable source of the child’s views and reasons.  Mr de Courcy discharged that responsibility in the Family Court, and it is agreed that he should update his report for the appeal, so I will have the benefit of P’s current views.   Counsel may also  refer to  reliable published documents dealing with interviewing techniques.   There is nothing in Ms Berry’s affidavit which goes beyond what I would expect to see in literature with which the Court is generally familiar.

Decision

[21]     The application for leave to call further evidence on appeal is dismissed.

Miller J

Solicitors:

Pitt & Moore, Nelson for Appellant