Mikova v Tova

[2016] NZHC 1983

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-2016-404-000960 [2016] NZHC 1983

BETWEEN

MIKOVA

Appellant

AND

TOVA Respondent

Hearing:	20 July 2016
Appearances:	G M Cameron and S Chandra for Appellant I M Blackford and H G Holmes for Respondent
Judgment:	24 August 2016

JUDGMENT OF PALMER J

This judgment is delivered by me on 24 August 2016 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors/Counsel:

G M Cameron, Barrister, Auckland

Turner Hopkins, Auckland

I M Blackford, Barrister, Auckland

MIKOVA v TOVA [2016] NZHC 1983 [24 August 2016]

Summary

[1]      Ms Tova and Mr Mikova met and married in New Zealand and their son Andrew was born in New Zealand six years ago.1   The three of them have lived in Bulgaria for the last four years, where Ms Tova and Mr Mikova divorced in 2015.  A few months later Ms Tova brought Andrew back to New Zealand without  Mr Mikova’s knowledge or consent.   The New Zealand Family  Court  ordered  Andrew’s  return  to  Bulgaria  under  the  Hague

Convention on the Civil Aspects of International Child Abduction (Hague

Convention).  Ms Tova appeals.

[2]      To succeed in her appeal Ms Tova has to show, on the balance of probabilities, there is a grave risk Andrew’s return would expose him to psychological harm or otherwise place him in an intolerable situation.   She argues Bulgaria’s system of family law cannot be trusted to protect Andrew from that grave risk given the alleged violence against her by Mr Mikova and widespread corruption of the Bulgarian legal system.  Mr Mikova denies the allegations and offers evidence from the Bulgarian Ministry of Justice.  I do not consider Ms Tova’s submissions are sufficiently established by the evidence and I dismiss the appeal.

Facts

[3]      Ms Tova was born in Bulgaria and moved to New Zealand with her family at the age of 16.  Although her family went back to Bulgaria Ms Tova studied and worked in New Zealand and became a New Zealand citizen.  In

2006 in New Zealand she met Mr Mikova, also from Bulgaria and also a New Zealand citizen.  They moved in together.  In October 2009 they married and in May 2010 they had Andrew who is a dual citizen of New Zealand and Bulgaria.  In 2011 they all moved to the United Kingdom, via Bulgaria, and bought a house.   In April 2012 they all moved to Bulgaria and sold their

house in London.

1      The names of the boy and his parents have been changed to reflect the anonymisation order of the Family Court judgment Mikova v Tova [2016] NZFC 2814 at [73](d) that is required under ss 11B and 11C of the Family Courts Act 1980.

[4]      On  19   February  2015   the  Sofia  Regional   Court,   by  consent, terminated the marriage and ordered that parental rights over Andrew would be exercised by Ms Tova.  Mr Mikova has the right to take and return Andrew every weekend and for 10 full work days during the summer holidays outside Ms Tova’s annual leave.   Andrew is to be together with both parents on Christmas, New Year’s Eve and during the Easter holidays and for name day and  birthday  celebrations.    Mr  Mikova  is  ordered  to  pay  monthly  child support and half of the kindergarten, school and extracurricular fees.

[5]      Other than these bare facts the parties have very different accounts.

Ms Tova’s account

[6]      In her affidavit Ms Tova says there were problems with Mr Mikova’s behaviour from the beginning of their relationship, particularly when he was drunk, and that he started to physically abuse her early on.  Ms Tova provides an affidavit from her mother saying she was concerned about Mr Mikova’s aggression, verbal attacks and expressions of dissatisfaction about Ms Tova from  the  start.    Her  mother  says  she  witnessed  several  occasions  where Mr Mikova was drunk, screamed at Ms Tova, argued with her and bashed her. She says he often grabbed Ms Tova’s face and once hit her so heavily she fell from a chair.   Ms Tova provides an affidavit from a friend saying that she witnessed one violent episode by Mr Mikova against Ms Tova at a party approximately eight years ago.  She also provides an affidavit from a cousin saying that  Mr  Mikova  would  intimidate and  threaten to  leave Ms Tova during regular family dinners.

[7]      Ms Tova says Mr Mikova forced them to stay in Bulgaria at the end of a holiday in April 2012.  Her cousin’s affidavit says Ms Tova had told her the same thing.  Ms Tova says that Mr Mikova’s mother did not live in Bulgaria and was not present on the occasions she describes in her affidavit for Mr Mikova.   She also says Mr Mikova’s friend, who provides an affidavit for him, did not spend enough time with them to give evidence of his observations.

[8]      Ms Tova and her mother both state in their affidavits Mr Mikova has allowed Andrew to touch a weapon he owns in Bulgaria.  Ms Tova’s mother recounts a 200 km per hour car trip which ended only when Andrew threw up.

[9]      Ms Tova says Mr Mikova abused alcohol and drugs, was increasingly violent towards her.  She provides an account of one particular occasion when he raped her.  She says she called the Police who arrived but left again after talking to Mr Mikova.  She believes he paid them off.  She says Mr Mikova threatened her life if she went to the authorities one more time.  Ms Tova says the physical and sexual violence continued and Andrew was present for most of it.  In January 2015 Ms Tova left Mr Mikova but she says he would visit and abuse her.

[10]     On 31 May 2015 Ms Tova took Andrew to New Zealand without Mr Mikova’s knowledge or agreement.   She told Mr Mikova once she got here.   In June 2015 she applied for a protection order against Mr Mikova. She says he has Skype contact with Andrew three times a week.

[11]     Ms Tova says that if she and Andrew were to return to Bulgaria they would be in extreme danger and possibly at risk of losing their lives.   She says Bulgaria is overwhelmed with Syrian refugees and crime and corruption are widespread.  She says she reported her car and her wallet being stolen and the Police did nothing.   Her family intend to leave Bulgaria because of the situation  there,  as  her  mother’s  affidavit  confirms.     She  believes  the corruption in Bulgaria means nothing would prevent Mr Mikova harassing and molesting her if she returns there.  She would have minimal opportunity to gain employment and she and Andrew would be under constant threat of criminal activity.

[12]     Ms Tova provides evidence of corruption in Bulgaria with reference to announcements and reports from the European Union, European Commission and the United States State Department, documents from media sources such as the BBC and the Economist, non-profit organisations (the Wilson Centre,

Euractive and the European Foundation for the Improvement of Living and

Working Conditions in Bulgaria), and a thesis from the University of Maine.

[13]     Ms Tova says that, a month before she left Bulgaria, she spoke to Ms Elina Georgieva, the Director of International Legal Child Protection and International Adoptions in the Bulgarian Ministry of Justice (which is the Central Authority for Bulgaria under the Hague Convention). She says she showed Ms Georgieva the Sofia Regional Court’s decision on the divorce, the divorce agreement and an open-ended power of attorney document signed by Mr Mikova allowing Andrew to travel with Ms Tova without Mr Mikova present.  On the basis of those documents, Ms Tova says Ms Georgieva:

(a)      told her she could legally leave the country and assured her that there was no possibility of the child being returned to Bulgaria;

(b)      shared Ms Tova’s views on the Bulgarian judiciary, and agreed

that Bulgaria would be an unsafe place to raise a child;

(c)       told    her    any    Hague    Convention    application    filed    by

Mr Mikova would be dealt with by Ms Georgieva.

[14]     Ms Tova says Ms Georgieva made her feel very comfortable with leaving Bulgaria, that Ms Georgieva told her she understood completely and thought they should go.  Ms Tova says she has been more than willing for Mr Mikova’s brother to have contact with Andrew and attaches amicable text exchanges between the two of them.

Mr Mikova’s account

[15]     By contrast, Mr Mikova says in his affidavit and his request under the Hague Convention that he has never had problems with alcohol, has never been abusive of Ms Tova and there has never been any domestic violence.  He says he was supportive of her and they always made decisions together including the decision to stay in Bulgaria and sell the London apartment.  He

and Ms Tova lived separately from late 2012 when Ms Tova threw him out. She then invited him back but he decided to live separately.   He says he rented an apartment for each of them.   He continued to spend time with Andrew at Ms Tova’s parents’ place in Bulgaria, they all went on a holiday to Greece and he paid for Ms Tova to have holidays in resorts.  He says Ms Tova purchased  two  apartments  in  May 2014  and  invested  money in  business ventures.

[16]     Mr  Mikova’s  request  under  the  Hague  Convention  details  how Ms Tova picked Andrew up from him on Thursday 28 May 2016 to go for a trip within Bulgaria.  On the Sunday, he found he could not contact her.  He discovered they were not staying where Ms Tova said they would, despite assurances to that effect from Ms Tova’s father.   He received a number of texts from Ms Tova reassuring him nothing was wrong until she called him on

2 June 2016 to say they were in New Zealand.  Mr Mikova says he has hardly spoken with Andrew after Andrew arrived in New Zealand.

[17]     Mr Mikova attaches to his affidavit:

(a)      A   statement   by   his   mother   who   says   Mr   Mikova   is hardworking and responsible and Ms Tova became rude and spoilt once she started her own business in London and did not have enough time to take care of Andrew.  She says Ms Tova was happy to return to Bulgaria.   On one occasion when Mr Mikova’s mother and father visited she says Ms Tova could not control her temper and she emailed them warning that they and Mr Mikova could not see the boy anymore.  She says in 2015

Ms Tova refused to let Andrew’s grandparents see him to the point they filed proceedings in a Bulgarian court for access. She says it is Mr Mikova and his family who are the victims of abuse by Ms Tova and that Ms Tova’s account of abuse is all made up.

(b)A statement by Mr Mikova’s brother who lives in New Zealand that he believes and knows Mr Mikova to be a responsible, dedicated father and a family man.  He says that Ms Tova has been unfriendly and has hardly given him the chance to see the child since she returned to Auckland.

(c)      A statement  by  a  friend  of  Mr  Mikova  who  lives  in  New Zealand saying that he regards Mr Mikova as a role model and had   never   witnessed   or   heard   of   any   issues   between Mr Mikova and Ms Tova.

[18]     Mr Mikova also attaches to his request four references from friends and neighbours in Bulgaria attesting that they considered him a very good father and neighbour.

Bulgarian Ministry of Justice evidence

[19]     Mr Mikova provides affidavits exhibiting a report dated 4 January

2016 and a letter dated 24 March 2016 by Ms Elina Georgieva, the official in the  Bulgarian  Ministry  of  Justice  to  whom  Ms  Tova  said  she  spoke. Ms Georgieva:

(a)       outlines the Bulgarian system of child protection under the

Child Protection Act;

(b)outlines   the   effect   of   the   Bulgarian   Protection  Against Domestic Violence Act under which protection may be sought from the court by any victim of domestic violence; and

(c)       describes the work and procedures of the Bulgarian Central

Authority under the Hague Convention. [20]   Ms Georgieva states:

(a)      every  parent  has  the  right  to  seek  assistance  from  the Department for child protection and can ask the Bulgarian courts to rule on their parental rights;

(b)there are dozens of examples of responsible and effective interventions by the Bulgarian courts in cases of violation of rights of parents and children;

(c)      the Child Protection Act is administered daily and indicates how Ms Tova could seek assistance in Bulgaria.

[21]     Ms  Georgieva  says  the  circumstances  indicated  by  Ms  Tova  as justifying staying in New Zealand are not within the objects of the Hague Convention.  She says Ms Tova’s account fails to provide specific details of the alleged corruption and the only Bulgarian court decision mentioned grants her parenting rights over her son.  She denies having said to Ms Tova what Ms Tova alleges her to have said and states that there are no facts known to her from her personal or professional life to support Ms Tova’s allegations about the Bulgarian legal system.   She says none of the officials working there do or could provide guarantees about court assessments in the manner Ms Tova describes.

Decision under appeal

[22]     On  11  April  2016  Judge  De  Jong  in  the  Family  Court  granted Mr Mikova’s application under the Hague Convention for Andrew’s return to Bulgaria.  Judge De Jong decided that Andrew’s habitual place of residence before he was taken to New Zealand was Bulgaria.   He also decided that Ms Tova had not discharged the onus on her to show, on the balance of probabilities, that there is a grave risk that Andrew’s return to Bulgaria would expose him to physical or psychological harm or otherwise place him in an intolerable  situation.    Given  those  decisions,  he  ordered  that Andrew  be returned promptly to Bulgaria.

[23]    Ms Tova appeals on the basis that, contrary to Judge De Jong’s conclusion,  there is  a grave risk  that Andrew’s  return  to  Bulgaria would expose him to psychological harm or otherwise place him in an intolerable situation.

Law

Purpose

[24]     The  Hague  Convention  was  signed  on  25  October  1980.     The preamble to the Hague Convention states:

The States signatory to the present Convention,

Firmly convinced that the interests  of  children  are of  paramount importance in matters relating to their custody,

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,

Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions—

[25]   Article 1 states (in the words of the Supreme Court) the “twin objectives”2 of the Convention:

ato secure the prompt return of children, wrongfully removed to or retained in any Contracting State; and

bto ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

[26]     New  Zealand  adopted  the Hague Convention  in  1991.    It  is  now incorporated into New Zealand law through subpart 4 of part 2 (“International child abduction”), and Schedule 1, of the Care of Children Act 2004 (the Act). As  the  Court  of Appeal  has  held,  the  provisions  of  the Act  should  be interpreted consistently with the Convention and in the manner in which it is

interpreted in other contracting states.3

2      Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289.

3      P v Secretary of Justice [2007] 1 NZLR 40, (2006) 25 FRNZ 327 (CA) at [10]-[12]

[27]     The Act also deals with other aspects of the care of children.   The purposes of the Act as a whole are stated by s 3(1) to be to:

(a)       promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care; and

(b)       recognise certain rights of children.

[28]     To that end, s 3(2)(f) states that the Act “implements in New Zealand law the Hague Convention”.

[29]     Section 4 states that “the welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration” in proceedings under the Act.

[30]     The Court of Appeal has summed up the purpose of the Act as:4

Insofar as it relates to rights of custody, therefore, the primary emphasis  of  the  Hague  Convention  is  on  the  prompt  return  of children who have been wrongfully removed from or retained away from the state of their habitual residence. The rationale is to deter such removal or retention but also (and importantly) to ensure that it is the state where the child has the most personal ties that will decide custody and access disputes related to that child.

Return of children wrongfully removed

[31]     The Hague Convention provides:

(a)      The removal or retention of a child is wrongful where it is in breach of custody rights under the law of the State in which the child was habitually resident and those rights were actually being exercised (art 3).

(b)A person claiming a child has been wrongfully removed may apply  to  the  Central  Authority  of  the  state  of  the  child’s

citing Dellabarca v Christie [1999] 2 NZLR 548 at 551 and Chief Executive of the

Department for Courts v Phelps [2000] 1 NZLR 168 (CA) at [14].

4      P v Secretary of Justice, above n 3, at [17].

habitual residence for assistance in securing the return of the child (art 8).

(c)       States are required to act expeditiously (art 11).

(d)When a child has been wrongfully removed or retained for less than one year, the judicial authority of the state “shall order the return of the child forthwith” (art 12).  In Secretary for Justice v HJ, McGrath J describes this as “the core provision of the Convention” which advances its “further object”, “to ensure mutual respect by Contracting States for rights of custody and

access under each others’ laws”.5

[32]     These provisions are reflected in the Act:

(a)      All appropriate measures are to be taken by the New Zealand Central Authority to secure the prompt return of a child if an application is received (s 103).

(b)A court must make an order that a child be returned promptly if the court is satisfied the grounds of an application to that effect are made out (s 105).

(c)      The   New   Zealand   courts   must   “give   priority”   to   such proceedings, so far as practicable to “in order to ensure that they are dealt with speedily” (s 107).

The test for refusing to remove a child

[33]     Article 13 of the Hague Convention, as reflected in s 106 of the Act, is key here.  It provides, relevantly:

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to

5      Secretary for Justice v HJ, above n 2, at [122].

order the return of the child if the person, institution or other body which opposes its return establishes that—

. . .

bthere is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

. . .

In  considering  the  circumstances  referred  to  in  this  Article,  the judicial and administrative authorities shall  take  into  account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence

[34]     Section 106(1) of the Act confers on a court a discretion6 to refuse to make an order for the return of a child “if any person who opposes the making of the order establishes to the satisfaction of the court” any of a number of grounds. The ground relevant here is:

(c)       that there is a grave risk that the child’s return—

(i)       would expose the child to physical or psychological harm; or

(ii)      would  otherwise  place  the  child  in  an  intolerable situation; or

[35]     Several points about the interpretation of this section are relevant here:

(a)      The  legal  focus  is  on  the  risk  to  the  child  who  has  been abducted, not on the risk to the abducting parent.

(b)The psychological harm, to which there must be a grave risk that a child would be exposed, must be substantial and more than merely transitory.7    The standard is high and stringently

tested.8

6      The majority of the Supreme Court in Secretary for Justice v HJ, above n 2, at [71] make clear s 106(1)(a) provides a discretion, once a ground for declining to order return is found, rather than any presumption as to return.

7      Coates v Bowden HC Auckland CIV-2006-404-7028, 30 May 2007, applying Clarke v

Carson [1996] 1 NZLR 349 (Elias J, as she then was).

8      Clarke v Carson, above n 7, at 353.

(c)      A grave risk of being exposed to an “intolerable situation” is not the same as being exposed to physical or psychological harm since it is qualified by “otherwise”.   For example, it may include a grave risk of substantial deprivation of other necessities of life or of breach of other human rights.

[36]     Article 13 and s 106 have been applied in a variety of cases in the New  Zealand  courts.    Tipping J  for  a  majority  of  the  Supreme  Court  in Secretary for Justice v HJ has observed statements in judgments and other writings about one ground for refusing return of a child should not be applied automatically  to  other  grounds  and  that  general  statements  about  such grounds should be treated carefully, recognising their generality.9   That said,

Tipping J also stated:10

.. all the exceptions must be approached with an understanding of their  shared  context,  within  a  Convention  that  has  the  general purpose of deterring child abductions.  That is achieved by ensuring prompt  return  in  cases  where  no  ground  to  refuse  return  is established.

[37]     As noted above, s 4 concerns the “paramountcy principle” that the welfare and best interests of the child must be the first and paramount consideration.  But s 4(4)(a) states that section “does not limit” subpart 4 of Part 2.  In Secretary for Justice v HJ the Supreme Court considered, when no ground for refusing to order return can be invoked, the court’s duty to order return is not “limited” by what is best for the individual child and a court is not  concerned  with  the  merits  of  any  underlying  custody  dispute  or  the

reasons which prompted the child’s removal.11

Assessing another nation’s legal system in terms of “grave risk” to a child

[38]     In a similar case to this one, A v Central Authority for New Zealand in

1996, a five-judge Court of Appeal interpreted the predecessor to s 106(1)(c),

9 At [39].

10 At [40].

11     Secretary for Justice v HJ, above n 2, at [5]-[7] (Elias CJ), [48] (Tipping J for the majority) and [123] (McGrath J).

s 13 of the Guardianship Amendment Act.12   There, the mother relied upon a grave risk of sexual abuse by the father if the child was to be returned to Denmark. The Court stated:13

In cases where a grave risk to the child is alleged under art 13, our s

13(1)(c), the Court of the country to which the child has been abducted will only be the appropriate Court if it is established the child's return to the country of habitual residence will give rise to a grave risk and the Court exercises its discretion in favour of retaining the child in the country to which the child has been abducted. Where the system of law of the country of habitual residence makes the best interests of the child paramount and provides mechanisms by which the best interests of the child can be protected and properly dealt with, it is for the Courts of that country and not the country to which the child has been abducted to determine the best interests of the child.

In most instances where the best interests of the child are paramount in the country of habitual residence the Courts of that country will be able to deal with any possible risk to a child, thus overcoming the possible defence of the abducting parent. That does not gainsay the fact that in some instances there will be situations where the Courts of the country to which the child has been abducted will not be so satisfied. This will not necessarily be limited to cases where there is turmoil or unrest in the country of habitual residence. There may well be cases, for example, where the laws of the home country may emphasise the best interests of the child are paramount but there are no mechanisms by which that might be achieved, or it may be established that the Courts of that country construe such provisions in a limiting way, or even that the laws of that country do not reflect the principle that the best interests of the child are paramount.

[39]     This remains an accurate statement of New Zealand law.  The relevant question is whether a New Zealand court is satisfied that the system of applying and enforcing laws in the country of habitual residence of an abducted child is so defective that it is likely to fail to prevent grave risk of the child of being exposed to physical or psychological harm or from being otherwise placed in an intolerable situation.  If so the court has a discretion to refuse  to  make  an  order  for  the  child’s  removal  under  s 106(1)(c).    But establishing that will not be an easy task.   No court has done so in New

Zealand, yet.

12     A v Central Authority for New Zealand [1996] 2 NZLR 517 (CA).

13     At 522-523 (emphasis added).

[40]     Article 14 allows a court to take notice of the law of the state of habitual residence without the need for formal proof of foreign decisions. Establishing, as a matter of fact, a systemic failure in the application and enforcement of law will be much harder.  In practice, expert evidence might be required to make the case.  That would likely be especially so in the face of evidence to the contrary from the Central Authority of the state concerned.

Bulgaria

[41]   In addition, there is a recent High Court decision regarding the availability of exactly this argument in relation to Bulgaria.  In ASM v DPM Venning J  considered a father’s submission that return of his daughter to Bulgaria would pose a grave risk under s 106(1)(c) because her mother had been abusive toward the child and he had suffered due to her connections

with powerful people there.14     Venning J agreed that the evidence, which

included two reports from the Bulgarian Social Assistance Agency regarding the family, supported Judge Maude’s findings in the Family Court that:15

(a)      the mother’s behaviour, as described by the father, “could be dealt with by the Bulgarian justice system”.

(b)“the Bulgarian justice system and support agencies provided for the welfare and best interests of children post-separation where allegations of ill-treatment or domestic violence were made”.

[42]     Venning J stated: 16

The Court must presume, in the absence of evidence to the contrary (of which there is none) that Bulgaria as a contracting state to the Hague Convention will have a family law system capable of protecting the children.  As Ms Blackford submitted, Bulgaria is part of  the  European  Union  and  subject  to  the  jurisdiction  of  the European Court of Human Rights, and a signatory to Brussels II

14     ASM v DPM [2016] NZHC 137.

15     At [7] and [26].

which makes the welfare and best interests of children paramount concern for European courts.

[43]     Venning  J  also  noted  that,  contrary  to  the  father’s  generalised allegations that he could not receive assistance from the Bulgarian authorities, he had obtained a temporary protection order there.17

Approach on appeal

[44]     For Mr Mikova, Ms Blackford submitted that, on appeal, this Court is free to substitute its own views for those of the Family Court on factual matters if satisfied that Court was wrong, in accordance with the approach to general appeals outlined by the Supreme Court in Austin, Nichols & Co In v

Stichting Lodestar.18     Ms Blackford submitted, in accordance with May v

May, to the extent the Family Court exercised a discretion this Court should only interfere if the Family Court is shown to have: acted on a wrong principle; taken into account an irrelevant consideration; failed to take into account a relevant consideration; or been plainly wrong.19    Mr Cameron, for Mr Tova, did not take issue with that approach, though he also submitted that Judge De Jong’s decision was in error in several specific ways.

[45]     Elsewhere, I have noted that the two approaches to appeals would not yield  different  results  in  many  practical  situations  but  they  might  in  a marginal case.20     The majority of the Supreme Court in Kacem v Bashir, upheld the distinction between a general appeal and an appeal from a “discretion” but noted that the distinction “is not altogether easy to describe in abstract”.21    It acknowledged “the fact that the case involves factual evaluation  and  a value  judgment  does  not  of itself  mean  the decision  is

discretionary”.22

17     At [34]-[37].

18     Austin, Nichols & Co In v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at

[3]-[5] and [16].

19     May v May (1982) 1 NZFLR 165 (CA) at 170.

20     McCaig v A Professional Conduct Committee [2015] NZHC 3063 at [5].

21     Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

[46]     Ultimately, the question of what approach is taken to an appeal is a question of the interpretation of the appeal provisions.  Here, Parliament has provided for a right of general appeal, in ss 143(2) and (4) of the Act and s 72 of District Courts Act 1947.  Section 75 requires that such an appeal “must be by way of rehearing”.

[47]     As the Court of Appeal said, in P v Secretary for Justice and Smith v Adam, the summary nature of Hague Convention cases and the specialist nature of the Family Court suggest that decisions should not be disturbed too readily on appeal.23   And if the s 106(1)(c) “grave risk” ground was found to be satisfied by the Family Court then its exercise of the residual discretion as to whether or not to order return of the child may well be subject to a Kacem approach on appeal.  Here, however, Judge De Jong did not reach that point. He considered the “grave risk” condition in s 106(1)(c) was not satisfied.

[48]     The question of whether Ms Tova has made out the s 106(1)(c) “grave risk” ground is a matter of the application of the law to the facts.  Previous High Court decisions have found that appeal of factual findings and evaluations in this context are considered using the approach to a general

appeal determined by the Supreme Court in Austin, Nichols.24   I consider that

accords with Parliament’s intent in its provision for a general appeal here. There is nothing in the appeal provisions to suggest Parliament considered the Family Court’s decision on whether a child is at grave risk under s 106(1)(c) to be so “discretionary” that the substantive appeal for which it has provided should  be  treated  as  a  judicial  review,  as  the  Kacem  approach  would effectively do.   The summary nature of Hague Convention cases and the specialist nature of the Family Court do not require that in relation to this

aspect of a s 106(1)(c) decision.   The appellant is entitled to judgment in

23     P v Secretary for Justice, above n 3, at [204] and Smith v Adam [2007] NZFLR 447 (CA)  at  [16].    See  Coates  v  Bowden (2007)  26  FRNZ  210  (HC)  and  Huntley  v Hamilton [2014] NZHC 1686 at [27]-[31].

24     See: B v F [2010] NZFLR 67 (HC) at [8]; AHC v CAC [2011] 2 NZLR 694, [2011] NZFLR 677 (HC) at [21]; BK v CJ & KJ [2015] NZHC 2169, (2015) 30 FRNZ 350 [56]-[58]

accordance with the opinion of the appellate court which must not defer to the court below.25

Application of law to facts

The merits of the case

[49]     Mr Mikova applied under article 8 and s 105 for Andrew’s return. Judge De Jong in the Family Court decided that Bulgaria was Andrew’s habitual residence and he had been removed in breach of Mr Mikova’s rights of custody. Those decisions are not appealed.

[50]     The issue on the merits of the case is: has Ms Tova satisfied me there is a grave risk that Andrew’s return to Bulgaria would expose him to physical or psychological harm or would otherwise place him in an intolerable situation?  If so, I would need to consider whether to exercise the discretion not to order that he be returned.

[51]     Ms Tova’s account is that Mr Mikova has been violent and sexually abusive of her.   But the legal focus must be on Andrew’s position not Ms Tova’s position.   There has been no suggestion that Andrew himself  has suffered, or is likely to suffer, physical abuse from Mr Mikova.  Mr Cameron, for Ms Tova, says the problem is that Andrew is likely to witness abuse of his mother by his father and that will expose him to psychological harm.

[52]     The psychological harm  to which there must be a grave risk that

Andrew would be exposed must be substantial.  But:

(a)      I  am  confronted  with  conflicting  evidence  as  to  whether Mr Mikova’s behaviour is violent and abusive.  Ms Tova says it is and Mr Mikova says it’s not.  Both of them support their

accounts with statements from friends and relatives.

25     Austin, Nichols & Co In v Stichting Lodestar, above n 18, at [16].

(b)      Similarly there is conflicting evidence of effects on Andrew.

Ms Tova says Andrew was present during occasions of Mr Mikova’s  abuse  of  her.    Mr  Mikova  denies  there  was  any abuse.  Otherwise, aside from an account by Ms Tova’s mother of one hair-raising car ride and another of Mr Mikova leaving Andrew alone for a time, there is no evidence that Andrew suffered harm when he resided in Bulgaria between April 2012 and June 2015.

(c)     Judge De Jong identified an unexplained “serious and irreconcilable difference” in Ms Tova’s account in these proceedings of being raped and her June 2015 affidavit in support of the protection order which states only that violence was verbal and psychological, not physical or sexual.26   I agree this is relevant, though not dispositive.

[53]     Whether and what parenting orders are necessary to protect Andrew’s interests, given the conflict between Ms Tova’s and Mr Mikova’s accounts, needs to be decided on the basis of all the evidence offered by both parties, including witness testimony.  That is not possible in New Zealand since only one of the parties is here.  That decision would be able to be made in Bulgaria if Andrew had not been removed to New Zealand.  The scheme and purpose of the Hague Convention and the Act are directed to returning an abducted child is to his or her place of habitual residence so that such a decision is able to be made there.  The question comes down to whether Ms Tova can satisfy me that Bulgaria’s system of applying and enforcing laws is so defective that it is likely to fail to prevent grave risk of Andrew being exposed to substantial psychological harm or from being otherwise placed in an intolerable situation.

[54]     Mr Cameron acknowledges the content of Bulgarian law, in adhering to Brussells II, upholds the best interests of the child.  He submits it is not the existence of relevant legislation but the manner in which it is, or is not,

administered that is the problem.

26     Mikova v Tova, above n 1, at [64].

[55]     The materials placed before me by Ms Tova raise questions about aspects of the operation of the Bulgarian criminal justice system.  But they do not demonstrate what Ms Tova asserts about the manner the Bulgarian system of family law is or is not administered.  They are phrased at a high level of abstraction and generality.   The European Commission reports indicate progress  has  been  and  is  being  made  in  terms  of  judicial  institutions,

organised  crime  and  anti-corruption  measures.27      And,  as  Ms  Blackford

submits for Mr Mikova, the materials upon which Ms Tova relies do not focus on the institutions or procedures of the family justice system that would, or would not, protect Andrew.

[56]     Furthermore, the Bulgarian system of family law, including the steps Ms Tova can take to avail herself and Andrew of its protection, is explained, and is the subject of explicit assurances, by the Central Authority of Bulgaria. Venning J’s decision earlier this year in ASM v DPM was based on evidence that the Bulgarian justice system and support agencies provide for the welfare and  best  interests  of children  where  allegations  of domestic violence are

made.28

[57]     It must require more than asserted suspicion and generalised internet sources  to  satisfy  me  that  Bulgaria’s  system  of  family  law  and  child protection is systemically ineffective and therefore likely to fail to protect Andrew from the grave risk of substantial psychological harm.

[58]     Finally, Mr Cameron places emphasis on a grave risk that Andrew is exposed to an “intolerable” situation.  That is not the same legal question as whether  he  would  be  exposed  to  physical  or  psychological  harm.    But Mr Cameron  does  not  specify  how  the  situation  that  he  says  would “otherwise”  be  “intolerable”  differs  from  being  exposed  to  physical  or

psychological harm.  The concerns expressed by Ms Tova are best expressed

27     European Commission Report From the Commission to the European Parliament and the Council on Progress in Bulgaria under the Cooperation and Verification Mechanism (Staff Working Document (2012) 232, 18 July 2012).

28     ASM v DPM, above n 14, at [7] and [26].

as concerns about physical or psychological harm rather than substantial deprivation of other necessities of life or other human rights.

[59]     Overall,  I  would  come  to  the  same  decision  as  Judge  De  Jong. Ms Tova has not satisfied me there is a grave risk that Andrew’s return to Bulgaria would expose him to physical or psychological harm or would otherwise place him in an intolerable situation.

Specific errors

[60]     Mr Cameron, for Ms Tova, also submits that Judge De Jong’s decision

was in error in three specific ways that amount to errors of law.

[61]     First, Mr Cameron submits that Judge De Jong’s decision conflated s 106(1)(c)(i)  with  s  106(1)(c)(ii),  addressing  the  issue  only  from  the perspective of “grave risk” rather than the alternative ground of “intolerable situation”.  I do not agree.  Judge De Jong did characterise issue two of his judgment, which relates to both subparagraphs of s 106(1)(c), in terms of “grave risk”.   But the wording of the section applies “grave risk” to both subparagraphs.  It is clear from his judgment that Judge De Jong considered

both of them.29   So do I.  I agree with Mr Cameron that Judge De Jong erred

in saying that there was no evidence to suggest Ms Tova contacted the Police when they attended her home.  But the conclusion to be drawn from that is still a matter of inference.

[62]     Second, Mr Cameron submits that Judge De Jong gave insufficient weight to the evidence of lawlessness and corruption in Bulgaria and the inability of the Bulgarian courts to adequately protect Andrew.  The weight given to a relevant consideration is rarely sufficient to establish an error of law but, in any case, I disagree.   Judge De Jong’s decision dealt explicitly with the most recent of the European Commission reports which Mr Cameron

emphasised.30   These reports do point to disturbing features of the Bulgarian

29     See, for example, Mikova v Tova, above n 1, at [70].

30     At [65]-[66].

legal  system.31      But,  as  noted  above,  they fall  short  of  establishing  that Bulgaria’s  family  law  system  cannot  protect  Andrew.    Put  against  the evidence offered by Mr Mikova from the Central Authority, they are insufficient to establish that the family law system is likely to fail to protect Andrew.

[63]     Finally,  Mr  Cameron  submits  that  Judge  De  Jong  placed  undue emphasis on the parties obtaining a divorce by consent, that Ms Tova did not use the protections offered by the Bulgarian courts and that Ms Georgieva did not deny important aspects of Ms Tova’s account of interactions with her.  But Judge De Jong’s reasoning does not place any weight on the divorce by consent.32     He notes that  Ms Tova consented to  weekend  contact by Mr Mikova and observed that “there is no evidence the mother utilised the protective   arm   of   the   Courts   or   applied   to   relocate   [Andrew]”.33

Mr Cameron’s suggestion that Ms Tova was fearful of applying for protection

might be right, but it does not demonstrate that the Bulgarian legal system was  unlikely  to  provide  protection.    And  Ms  Georgieva’s  response  to Ms Tova’s account denies making the statements Ms Tova attributed to her. She disagrees with Ms Tova’s view regarding the ability of the Bulgarian courts to protect a child or woman against domestic violence that are relevant to the appeal.

[64]     I do not consider any of these three submissions amount to a material error of law that undermines the conclusion reached by Judge De Jong or

requires me to come to a different result.

31     European Commission, above n 27, European Commission Report from the Commission to the European Parliament and the Council on Progress in Bulgaria under the Co- operation and Verification Mechanism (Staff Working Document (2014) 36, 22 January

2014),   European  Commission  Report   From   the   Commission  to   the   European Parliament and the Council on Progress in Bulgaria under the Cooperation and Verification Mechanism (Staff Working Document (2015) 9, 28 January 2015).

32     It is mentioned during the judge’s account of Ms Georgieva’s points: Mikova v Tova,

above n 1, at [69].

33     At [70](e).

Result

[65]     I dismiss the appeal.  If costs cannot be agreed the appellant may file a memorandum within 20 working days and the respondent may file one in response within 10 working days from that.

Palmer J