O v The Queen
[2018] NZHC 2696
•17 October 2018
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND
11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE judgments/
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-539 [2018] NZHC 2696
IN THE MATTER OF The Care of Children Act 2014 and the
ratification of the Hague Convention on the Civil Aspects of International Child Abduction 1980
UNDER
An appeal against a Family Court decision directing child to be removed to Australia
BETWEEN
O Appellant
AND
R Respondent
Hearing: 8 October 2018 Appearances:
A Hart for Appellant
S R Jefferson QC and L Tuimavave for RespondentJudgment:
17 October 2018
JUDGMENT OF GRICE J
[1] Ms O and Mr R’s daughter had her first birthday on the day of this hearing. She was born in Australia after her parents had separated. Mr R did not know Ms O was pregnant. He became aware of their daughter only after her birth. Ms O brought her to New Zealand on 21 February 2017. Mr R did not know they had left Australia
until March 2017.
O v R [2018] NZHC 2696 [17 October 2018]
[2] Mr R sought an order for their daughter’s return under the international child abduction provisions in the Care of Children Act 2004 (the Act).1 It is now common ground (although it was not referred to in the Family Court decision) that Mr R’s application was filed more than 12 months after the date that Ms O left Australia with their daughter (21 February 2017). Mr R was represented by a lawyer appointed by the New Zealand Central Authority. The Judge noted that in accordance with the usual procedure she did not hear from the parties directly but received written submissions before the hearing, additional submissions during the hearing and affidavits of both parties. There was no cross-examination or testing of the evidence.
[3] On 19 June 2018, the Family Court made an order their daughter be returned to Australia.2 Ms O appealed that decision, and the child remains here with her mother pending the outcome of this appeal.
Factual background
[4] The Family Court Judge set out the history as follows:3
Background
[8] The parties commenced a relationship in 2011 or 2012 in New Zealand. Both are New Zealand citizens. They moved to Australia either in February 2012 (according to the mother) or in March 2013 (according to the father). From the father’s perspective, the parties permanently located to Australia at that time. They took with them two children from the father’s previous relationship and one child from the mother’s previous relationship.
[9] They separated in April 2016. The mother took her child and left the family home. The father remained in the home with his two children. At the time of the separation the mother was pregnant but the father did not know this.
[10] The child was born in Australia on 9 October 2016 at 34 weeks gestation by emergency caesarean section. The mother says that she did not intend for the child to be born in or remain in Australia. She was only born there because of medical complications (placenta previa). The mother was not prepared for the birth of the baby and had not made arrangements in Australia because she intended to return to New Zealand before the child was born.
1 Care of Children Act 2004, s 105.
2 [R] v [O] [2018] NZFC 4516.
3 [R] v [O], above n 2.
[11] The father found out about the birth through a mutual friend. After the child’s birth the child and the mother returned to the father’s home. The relationship did not resume because by then the father was in a new relationship. He provided accommodation and support to the mother and the child until mid-January 2017.
[12] On 5 January 2017 the mother advised the father that she wanted to return to New Zealand with the child.
[13] By mid-January 2017 the mother had left the father’s home taking the child with her. In the text message communication between them the mother sought the father’s agreement to travel to New Zealand with the child for a holiday and confirms she does not want to go to New Zealand permanently. He agreed to her doing so, subject to her providing written confirmation that she would return to Australia with the child.
[14] On 16 January the mother advised the father she wishes to permanently relocate to New Zealand. His unequivocal response was that he did not agree to her taking the child.
[15] The mother left Australia on 21 February 2017. It is accepted that the father did not know she had left Australia or had obtained travel documentation for the child. He became aware of the fact that the mother and child were in New Zealand in March 2017 when he recognised a park in the background of a photograph the mother had sent him. On 8 March 2017 he messaged the mother asking her to confirm whether she had returned to New Zealand and confirming he would initiate court proceedings if that was the case.
[16] On 14 March 2017 the mother confirmed she and the child were in
New Zealand.
[17] In October 2017 the father came to New Zealand. This prompted the mother to apply to the Family Court seeking urgent orders because of concerns that the father intended to uplift the child from her care. The father was served with the Family Court proceedings on 30 October 2017. On 9 November 2017 he emailed the Family Court seeking to stay the Family Court proceedings pending his Hague Convention application being filed and dealt with by the court.
[5] A minute of the Judge on the Family Court file records that Mr R filed a Hague
Convention application for return of the child to Australia on 22 February.
[6] The chronology as narrated by the Judge is largely uncontested. There are some peripheral issues which are not agreed, but these are not material to the outcome of the appeal.
Decision in the Court below
[7] Ms O opposed the order for return to Australia their daughter on the basis that:4
(a)The child was not habitually resident in Australia immediately before her removal (as required by s 105(1)(d) of the Act); or
(b)She was not wrongfully removed from New Zealand or wrongfully retained in New Zealand (as required by s 105(1)(b) of the Act).
[8] The Judge noted that if Ms O was successful in her opposition to the application on either ground, then Mr R would have failed to establish, on the balance of probabilities, the s 105 criteria and there would be no basis for an order for return to be made. However, if Ms O was not successful and the grounds were established, the Court had to make an order that the child be returned to Australia.5
[9] The Judge noted that no defences under s 106 of the Act, or other grounds of opposition, were advanced.6 Ms Hart for Ms O argued that this omission occurred despite the fact it was obvious that Mr R’s application had been made over 12 months after the child was removed to New Zealand.7
[10] The Judge began by setting out an overview of the law, noting that the burden was on Mr R to establish the elements required under s 105 of the Act. The Judge found the child was in New Zealand and that Mr R was exercising his custody rights at the time of the child’s removal from Australia. The Judge then moved to the issue of whether the father had established that the child was wrongfully removed, and whether the child was a habitual resident of Australia.
[11] The Judge found the child had been wrongfully removed. She found that Mr R had not consented to her being removed permanently as the evidence showed he had only consented to the child being taken for a holiday to New Zealand. The Judge further concluded the evidence showed Ms O knew Mr R didn’t want the child
4 [R] v [O], above n 2, at [5].
5 At [7].
6 At [6].
7 Care of Children Act 2004, s 106.
travelling to New Zealand at all on 21 February 2017. This evidence included text exchanges, the lack of involvement of the father in planning and travel documents, failing to tell Mr R at the time that they were going, and the fact he discovered accidentally that they had left in March 2017. The Judge did, however, note her concern at the length of time that had passed before Mr R made this application, but concluded that there was no evidence that would establish a defence of acquiescence.
[12] Turning to habitual residence, the Judge canvassed the unusual circumstances of the case. These included that the separation had occurred before their daughter’s birth, and the intention of Ms O that the child be born in New Zealand. The Judge found that Ms O’s intention was not determinative of this matter, and that she would need to consider the child’s habitual residence immediately prior to removal. The Judge noted that because of the separation, it was difficult to find the “settled purpose” of the parties as to residence. The Judge found it was Ms O’s intention to return to New Zealand with their daughter, but it was Mr R that intended their daughter remain in Australia. She also noted that the child had lived in Australia since birth. The Judge rejected an argument she had no habitual residence, and found that the child’s habitual residence was Australia.
[13] The Judge found that Mr R had made out the relevant grounds under s 105 of the Act. She concluded that the child must therefore be returned to Australia.
Grounds of appeal
[14] The issues before Court, as framed in Ms O’s notice of appeal were that the
Judge erred:
(a) In finding that the child was habitually a resident in Australia;
(b) In the way she treated the issue of habitual residence; (c) In the way she treated the issue of settled intention; and (d) In the way she treated the issue of acquiesce.
[15] In her submissions on the day of hearing, Ms Hart reframed the issues before this Court as follows:
(a)That the child was not habitually resident in Australia immediately before her removal (s 105(1)(d));
(b)That she was not wrongfully removed from Australia or wrongfully retained in New Zealand (s 105(1)(b));
(c) That Mr R acquiesced to her removal or retention in New Zealand (s
106); and
(d)That the child has been in New Zealand for more than 12 months and is settled in New Zealand (s 106).
[16] Ms Hart abandoned ground [15](b) above. Ms Hart agreed that the ground on which it was based was a criticism of the sequence in which the Judge decided wrongful removal and habitual residence. This was immaterial and so not pursued.
[17] In relation to [15](c) and [15](d) above, Ms Hart sought leave before me to file an amended notice of appeal addressing these as new grounds and to argue them before this Court.
New grounds for appeal lodged
[18] On the morning of this hearing, Ms Hart filed a document headed “Application for Leave to Amend Grounds of Appeal”. This sought to add the two new grounds in the appeal:
(a)That Mr R did not make his Hague application within one year of the date that Ms O left Australia with their daughter and the child is now settled; and
(b) That Mr R acquiesced to their daughter living in New Zealand.
[19] Each of these might have raised defences under s 106 of the Act for Ms O to oppose the making of the order for return of the child.
[20] This application to amend had been sent to Mr Jefferson, for Mr R, by email at approximately 9.30 pm on Saturday 6 October 2018, before the Monday morning hearing. Mr Jefferson, therefore, had little time to prepare a response. He opposed the application for leave to amend the grounds of appeal.
[21] The ground of acquiescence had been dealt with in the decision by the Family Court.8 This was despite the fact it had not been specifically raised as a ground of opposition under s 106 of the Act. The Judge found there was no acquiescence by Mr R. Nevertheless, the Judge did express some concern about the length of time between the father becoming aware of the child’s presence in New Zealand and the father making an application for an order for return.9 Acquiescence had been initially raised as a ground of appeal in Ms Hart’s original notice of appeal. However, counsel later advised she would not be relying on that ground.10
[22] Turning now to the ground of appeal based on 12 months lapsing before the application was filed and the child being settled. The Judge did not deal with this matter in her judgment as it was not raised by Ms O in opposition. Nor was it included as a ground of appeal in Ms Hart’s notice of appeal. Effectively, the first time it was raised before this Court was at the hearing.
[23] In addition, the original notice of appeal was filed out of time so leave is required to extend time.
8 [R] v [O], above n 2, at [21] - [29].
9 At [24].
10 This followed Ms Hart failing to file completed submissions within the Court’s extended timetable, and a resulting minute of the Court noting Ms Hart would have to apply for a further
extension of time for filing submissions if she wanted to amend the filed written submissions. The
minute further noted this was only likely to be granted in compelling circumstances.
Position of Mr R
[24] Mr Jefferson indicated he neither consented nor opposed the extension of time for the filing of the appeal. He noted no prejudice had been suffered. The filing was only a matter of a week, or 10 days, outside the time limits.
[25] He further noted he had filed already submissions on acquiescence. Therefore, he was not unduly prejudiced in preparing for the appeal by the late addition of acquiescence as a ground of appeal.
[26] He opposed the introduction of new ground of appeal that a defence under s
106(1)(a) was available, based the lapse of 12 months before the filing of the application and the child was settled. This ground was not raised in the Family Court, nor in the grounds of appeal in Ms Hart’s notice of appeal. The first notification
Mr Jefferson had was when he received the email late on Saturday 6 October, with the hearing on Monday 8 October. He also pointed out that the Judge had made a mistake in the date she said the Hague Convention application had been filed. However, it was common ground that neither counsel in the Family Court alerted the Judge to the fact that 12 months had expired.11
Standard of appeal
[27] Under s 143(4) of the Care of Children Act 2004, the High Court Rules 2016 and s 128 District Court Act 2016 apply to an appeal to the High Court as if it were an appeal under s 72 of the District Courts Act 2016. Under r 20.19(1) and (3) of the High Court Rules 2016, the High Court may:
(a) make any decision it thinks should have been made by the Family
Court;
(b) direct the Family Court to rehear the proceedings concerned;
(c) direct the Family Court to consider or determine any matters that the
High Court specifies;
11 Present counsel did not appear in the Family Court.
(d)direct the Family Court to enter judgment for any party to the proceedings;
(e) make any further order it thinks fit; and
(f) make any order for costs.
[28] If the Court decides to direct that the decision be reheard in the Family Court it must give reasons for doing so.12
[29] Rule 20.18 (which applies pursuant to s 143(4) of the Act) provides that all appeals are by way of rehearing. An appeal under s 143 is a general appeal. 13 The applicable standard of appeal is that articulated by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.14 The appellate court has the responsibility of arriving at its own assessment of the merits of the case, but the appellant bears the onus of satisfying the Court that it should differ from the decision below. No deference is required beyond the customary caution appropriate when the tribunal had a particular advantage, such as technical expertise or the opportunity to assess the credibility of witnesses.15 Elias CJ summarised the position of the Supreme Court as follows:16
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate Court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
12 High Court Rules 2016, r 20.19(2).
13 B v B [2008] NZFLR 1083 (HC).
14 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5] and
[16].
15 At [3] to [5], [13], [21].
16 Austin, Nicholls & Co Inc v Stitching Lodestar, above n 14.
Habitual residence
[30] Section 105 of the Act governs international child abduction. If the Court finds the factors in this section are satisfied, subject to the defences in s 106, it is mandatory that the child be returned to the contracting country.17 The parent seeking the child’s return must satisfy the Court on the balance of probabilities that:18
(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.
[31] Several matters are not in dispute in the present appeal. Specifically, that the child is present in New Zealand, and that Mr R was exercising his rights of custody at the time the child was removed. It is also not disputed that the child was removed from a contracting state (Australia). The requirements in s 105(1)(a) and (c) are therefore satisfied here. The primary matter of contention in the present case is the child’s habitual residence (s 105(d)).
Relevant law
[32] Habitual residence is not defined in the Act and question of habitual residence is therefore primarily a factual one. The Court of Appeal in P v Secretary of Justice noted that:19
[25] As was said in Re M (Minors) (Residence Order: Jurisdiction) [1993]
1 FLR 495 (EWCA) at 499, habitual residence is primarily a question of fact to be decided by reference to the circumstances of each case. See also, for example, this Court's first decision in P at [3] per Gault P, at [29] per Blanchard J and at [125] per Glazebrook J; in the United Kingdom, Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 (HL) at 578; in Australia, State Central Authority v McCall (1994) 121 FLR 65 (Aust FC) at
70; and in Canada, Korutowska-Wooff v Wooff (2004) 242 DLR (4th) 385 (Ont
CA) at 390. We note, for completeness, that in the United States habitual
17 Care of Children Act 2004, s 105(2); B v B [1994] NZFLR 497 at 502.
18 Section 105(1).
19 P v Secretary for Justice [2007] 1 NZLR 40, (2006) 25 FRNZ 327 (CA).
residence is considered to be a mixed question of fact and law: see Feder v
Evans-Feder 63 F3 d 217 (3rd Cir, 1995) at 222, Silverman v Silverman 338
F3 d 886 (8th Cir, 2003) at 896, Delvoye v Lee 329 F3 d 330 (3rd Cir 2003) at
332 and Mozes v Mozes 239 F3 d 1067 (9th Cir, 2001) at 1073. This appears, however, to be so that there is more scope for appellate review - see Kelly“Taking Liberties: The Third Circuit Defines ‘Habitual Residence’ Under the Hague Convention on International Child Abduction” (1996) 41
Vill L Rev 1069 at 1084.
[33] The Court of Appeal in Punter rejected the notion that the intention of the parents is determinative, rather is only a single factor in a multi-factor analysis:20
[106] In our view, the SK v KP formulation of the test accords appropriate significance to parental purpose in line with Lord Brandon's statement of principle. At the same time, by requiring all of the relevant factual circumstances to be weighed alongside the consideration of settled purpose, the test in SK v KP accords with the need to ensure that the concept of habitual residence remains a factual one not limited by presumptions or presuppositions. As pointed out by Schuz, the pure parental-rights model (as postulated by Mr Pidgeon) does not meet this aim … We also prefer the SK v KP formulation to that in Mozes, where, in our view, the Court put too much emphasis on parental purpose, thus obscuring the factual nature of the inquiry. The SK v KP formulation also accords with what is said in Dicey and Morris. The authors say that the element of settled purpose is not necessarily determinative, and that the better view is that evidence of intention may be important in particular cases, for example in establishing habituation when the actual period or periods of residence have been short.
[34] Mr Jefferson also pointed to more recent cases of the UK Supreme Court. This included In the Matter of A (children) (AP). He submitted that the decision went further than Punter and was indicative of a more child focused approach, moving away from simply looking at the intentions of the parents.21
[35] Both counsel agreed that the summary of the legal position in New Zealand was correctly articulated by Dobson J in the recent decision of Langdon v Wyler:22
[14] In summary the assessment of whether a particular country is a child's habitual residence is a factual inquiry, necessarily tailored to the particular circumstances of the individual case. Parental purpose may be a factor, but it is not determinative. The focus is on the actual situation of the child, and his or her connection with and integration in the relevant country.
20 At [106] (citations omitted).
21 A v A (Children: Habitual Residence) [2013] UKSC 60, [2014] AC 1 at [38].
22 Langdon v Wyler [2017] NZHC 2535.
[36] Mr Jefferson noted that since Punter, the Supreme Court of Canada had adopted New Zealand’s position.23 In Office of the Children’s Lawyer v Balev, the majority of the Supreme Court of Canada adopted a “hybrid approach”.24 It described its approach as focusing on all of the relevant considerations that arise from the facts of the case. These factors notably include the duration, regulatory conditions and reasons for the child’s stay in the territory of a Contracting state, as well as the child’s nationality. They explained that in determining habitual residence, Judges must look at the child’s situation and consider all relevant links and circumstances. This included the child’s links to and circumstances within country A, as well as the circumstances of the child’s move from country A to country B, and the child’s link to and circumstances in country B.25 The majority adopted that hybrid approach for two reasons. First, the principle of harmonisation supported it. It found that there was a trend towards the hybrid approach in foreign case law dealing with the Convention and that there was no reason not to follow that trend. Secondly, the hybrid approach best conformed to the text, structure and purpose of the convention.26 The majority also found the delay that had occurred in that case was unacceptably long and noted that the convention imposed an obligation to act expeditiously in proceedings for the return of children, in that the responsibility for performing Canada’s art 11 obligation falls to Judges and court administrators.27
Factual disputes relating to habitual residence
[37] Ms O argues that the Judge erred when she found the child was habitually resident in Australia immediately before her removal. She says it was her clear intention to return to New Zealand for the birth and rearing of her child. She submits the Judge placed too much weight on where the child was born and her belief the child was an Australian citizen.
23 Office of the Children’s Lawyer v Balev 2018 SCC 16.
24 At [5].
25 At [43].
26 At [48].
27 At [87].
[38] Ms O argues Mr R knew she was pregnant and his response to the news was to deny paternity. He says he now regrets this. There has been no DNA testing, but he nevertheless acknowledged he was the father.
[39] Another disputed matter is that Ms O says that while she accepts Mr R sent a number of texts expressing his interest in the child and was unwilling to relinquish his parental rights or to agree to their daughter staying in New Zealand permanently (rather than a holiday), those statements are at odds with his behaviour.
[40] It is Ms Hart’s case that these contested factual assertions support the submission that Mr R “abdicated” his responsibilities when Ms O was pregnant. At that time she was assessing at her options and had decisions to make. She was struggling to survive in Australia and planned to go to New Zealand. She was delayed from coming back to New Zealand by fines which she had to pay and was then hospitalised after she suffered a serious pregnancy related condition. She could not travel. She had no choice but to go to Mr R’s house after the birth. She was forced to “camp” with him and his new girlfriend.
[41] Ms Hart says Mr R “blows hot and cold”. He had an opportunity to step in and assist once Ms O had made her decision to go to New Zealand. But he did not. By his failure he had relinquished any rights to input as to where the child should live and this was a factor when considering “habitual residence” of the child.
[42] Ms Hart, for Ms O, further submits there is no evidence that the child is an Australian citizen. She argued that while there is no evidence one way or the other on this matter, it is unlikely her parents applied for citizenship or permanent residency in Australia, so the child could not be a citizen. Ms Hart was unable to confirm whether either parent had or had not applied for permanent residency.
Is the habitual residence of a neonatal that of its principal caregiver?
[43] Ms O suggests that in the case of a young child, habitual residence is inevitably that of its principal caregiver, citing in support of this proposition several pre-Punter
cases.28 The fact that Mr R is only seeking contact (presumably as opposed to day to day care) should be a factor weighing against the child’s habitual residence being in Australia.
[44] In my view, this ignores the role Mr R played in the child’s life before her removal from the country. It would also be a significant departure from the approach
set down by the Court of Appeal in Punter. Ms Hart’s proposed approach would be more prescriptive and parent focused. It would be inconsistent with the New Zealand position.
[45] The Judge concluded that Ms O’s intention was that the child move to New Zealand and Mr R’s was that the child remain in Australia. The Judge found that neither intention was determinative, and neither parent could unilaterally change the child’s habitual residence. This must be correct. The parents each intended different things for their daughter. There was no shared settled intention. It is only by ignoring the intention of Mr R in its entirety that this factor would suggest their daughter’s habitual residence was New Zealand as Ms O intended to move here. However, once accepted that Mr R has established custody rights for the purposes of this Act, his position must be considered in any assessment. There was no error in the Judge holding that Ms O’s intention was but one factor.
Was there no habitual residence?
[46] Ms O also argues their daughter was only aged four and a half months’ when she was taken from Australia, she cannot have acclimatised to the country. Ms Hart said Ms O had few options, as she was forced to stay in Australia until the child was born. Mr R had an opportunity to intervene and help her but he did not do so. Therefore, he permitted the situation to arise where the child had no habitual residence.
[47] Ms O also noted the Judge failed to consider that Ms O’s real family, including her step parents, are in New Zealand. She also noted that Ms O’s son had left Australia (there being a suggestion that he did not get on with Mr R) and returned to New Zealand to live with his own father. He still lives in New Zealand with his father.
28 For example, Smith v O’Dwyer [1995] NZFLR 151.
[48] On that basis Ms Hart submitted that the Judge was in error when she said:29
[45] An alternative submission made by the mother is that there may be an absence of a habitual residence. The United Kingdom Supreme Court determined it would be an exceptional circumstance for a child to have no habitual residence and would be highly unlikely for an initial habitual residence to be lost before a new habitual residence was established for a child.
[46] I do not consider the circumstance of this case to be so exceptional as to justify a finding the child had no habitual residence at the date of her removal from Australia.
[49] Ms O’s submission arguing exceptional circumstances leading to a child having no habitual residence is based on a minority decision in A (Children) AP.30 In that case, Lord Hughes, while agreeing with the order which the court should make to dispose of the appeal, made his own observations relating to the habitual residence of a new born baby. He said it was established that habitual residence can, and often does, co-exist with actual current absence from the relevant country. If current physical presence is not required, then theoretically habitual residence can exist without any physical presence having yet occurred where that presence has been prevented by some kind of unexpected force.31
[50] The majority of Their Lordships in that decision did not adopt Lord Hughes comments. Nor have the New Zealand courts embraced his approach.
[51] Ms O also cited the UK decision of Re F (Abduction) (Unborn Child) in support of the proposition that had she returned to New Zealand before the birth of her child, Mr R would have been unable to raise a Hague convention case.32 This is correct, but that is not what occurred here.
[52] Ms O also pointed to the case In the Matter of B (A Child).33 Lord Wilson, for the Court, said:
42. … By proximity, “the court clearly meant the practical connection between the child and the country concerned”: Lord Hughes in A v A, cited above, at para 80(ii). In its analysis of the concept of habitual residence the
29 [R] v [O], above n 2.
30 In the matter of A (Children) AP [2013] UKSC 60, (2014) AC 1.
31 At [92].
32 Re F (Abduction) (Unborn Child) (2006) EWHC 2199.
33 In the Matter of B (A Child) [2016] UKSC 4.
CJEU, both in Proceedings brought by A at para 35 and in the Mercredi case at paras 46 and 47, stressed the significance of recital 12. Of course it does not follow that the court can construe a child’s habitual residence by reference to the result which best serves his interests. The effect of the recital is more subtle and more limited yet nevertheless significant: where interpretation of the concept of habitual residence can reasonably follow each of two paths, the courts should follow the path perceived better to serve the interests of children. Or, to be more specific to the facts of the present case: if interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has an habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the court should adopt the former.
[53] The import of Lord Wilson’s comments is that generally where it is evenly balanced, the interests of the child should tip the scales. That case was specifically referring to the contest between finding habitual residence and finding that the child had no habitual residence. His Lordship said that the former should be favoured in that case.
[54] This is not such a finely balanced case. Mr R’s support or otherwise when he was told of Ms O’s pregnancy, in my view, is a weak consideration. He subsequently acknowledged paternity, he provided a home for Ms O and their daughter. He provided financial and other support for them. His interest and endeavours to be part of their daughter’s life are reflected in the text messages referred to by the Judge. Ms O knew of Mr R’s support and interest in their daughter.
[55] Secondly, their daughter’s age is a factor, but it is not a factor which would in and of itself have given rise to ‘exceptional circumstances’. If it were otherwise, the Hague Convention provisions would be of little application in the case of infants.
[56] I am of the view that the Judge in this case was correct in saying there were no exceptional circumstances such that the child had no habitual residence.
[57] I conclude that the Judge made no error in finding that immediately before her departure from Australia their daughter had habitual residence in Australia. The Judge
adopted the correct test and she set out her reasons which supported that finding.34
34 [R] v [O], above n 2, at [30] - [35].
[58] Her conclusion was that both parties chose to leave New Zealand to make a home in Australia and raise their blended family there. Although their daughter was not planned she was born in Australia and lived there for her entire life before being removed without her father’s knowledge or consent.35 The Judge therefore found Mr R had established the grounds under s 105 and so the Court must make the order for return of the child, notwithstanding the length of time she had been in New Zealand and the likely disruption to her as a result of the making of that order.36
[59] I note that even if the Judge was wrong about the child’s citizenship it was immaterial to the decision and only a minor point in her consideration.
Section 106(1)(a) and leave to amend notice of appeal
[60] It has been conceded that Mr R and Ms O’s daughter was removed from Australia on 21 February 2017, and Mr R’s application was not filed with the Court until 22 February 2018 at the earliest.37 The Judge noted that his application was made on 20 February 2018, but this was wrong.
[61] Therefore, Ms O had available to her the possibility of raising a ground of opposition under s 106(1)(a) of the Act, which provides:
106 Grounds for refusal of order for return of child
(1)If an application under section 10 5(1) is made to a Court in relation to the removal of a child from a Contracting State to New Zealand, the Court may refuse to make an order under section 10 5( 2) for the return of the child if any person who opposes the making of the order establishes to the satisfaction of the Court—
(a)that the application was made more than 1 year after the removal of the child, and the child is now settled in his or her new environment; or
[62] If it is established that the child is indeed settled, there is no longer a presumption that the child should be returned.38 However, the Court is not bound to refuse the order. It has a discretion.
35 At [47].
36 At [50].
37 Although he had sought a stay of the domestic proceedings on 9 November 2017; see [R] v [O], above n 2, at [17].
38 Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289; (2006) 27 FRNZ 213.
[63] In exercising its discretion, the Court should compare and weigh the two considerations before it. One of those considerations is the welfare and best interests of the child, and the other is the significance of the general purpose of the convention in the case. These two considerations will not always be in conflict.39 It is important to look at whether it would be in the child’s best interests to return, even though the child is settled. This assessment includes an assessment of the child’s new circumstances, how it was removed, the degree of harm the child would suffer through return, the result of the conflict between the parents and whether the child was concealed by the removing party.
[64] However, it is common ground that this defence was not raised before the Judge. This matter was not part of Ms O’s notice of appeal. Leave is therefore required to raise it before me now.40 The question of whether leave should be granted to amend a notice of appeal is a simple question based on the interests of justice. In Gibson v Complaints Assessment Committee, Cooper J said:41
[33] It seems to me that the question whether leave should be granted to amend a notice of appeal should now simply be approached on the basis of an inquiry into what course will best promote the interests of justice. Prejudice to a respondent may very well be a relevant consideration and in an appropriate case that would embrace such matters as timeliness and the imminence of any hearing date as well as significant delays in the conduct of the appeal attributable to the actions of the appellant. But that can only be one consideration. Also relevant will be whether the amendments proposed are necessary or desirable to ensure that the appeal operates as an appropriate vehicle to resolve errors that arguably and genuinely arise in respect of the decisions that are impugned. Ultimately, the question that will need to be answered is whether the interests of justice would be better served by granting the amendment or declining it.
[65] Putting to one side that the matter was only raised on appeal before me today, I do not consider there is sufficient evidence before me, nor was there before the Family Court Judge, to establish whether the child was settled in New Zealand.
[66] Ms Hart disagreed that the evidence available to the Court was insufficient to establish whether the child was settled here. She pointed to the Supreme Court case
39 At [85] – [87].
40 High Court Rules 2016, rr 20.9(4).
41 Gibson v Complaints Assessment Committee HC Auckland CIV-2005,404-7353, CIV-2005-404-
7355, 15 December 2006.
of Secretary for Justice v HJ.42 In that decision, the Supreme Court considered a Hague Convention application. The Family Court Judge in that case found that the children had been two years in New Zealand and were “well settled”. The Judge still made an order for the return of the children, despite this finding. This decision was upheld on appeal to the High Court, but set aside by the Court of Appeal. The Supreme Court upheld the Court of Appeal’s decision to set aside the Family Court decision on the basis that there is no presumption in the favour of return where a defence under s
106 of the Act is established. The Court must instead make a determination on the return of the child based on the purposes and policies of the Act. Ms Hart argued that this case is an example of an appellate court finding that a child was settled based on the evidence from the court below. However, that was not an argument on appeal. The Family Court Judge had made a finding on that point and it was not contested on appeal. This case is entirely different. Here the matter was not explored in the court below at all. No evidence was directed at this point, nor were submissions.
[67] Ms Hart says there is sufficient evidence before me to make a finding based on the affidavits and reports filed in the Family Court in the present proceeding, and in the other related domestic parenting proceedings. Two reports from lawyer for the child in the domestic proceedings are contained in the common bundle before me. These are administrative in nature and do not provide any relevant information. They simply provide an overview of the legal situation of the child in the present circumstances. Lawyer for the child was not appointed in the Hague Convention proceedings.
[68] In relation to the parenting proceedings, there was also a report from Oranga Tamariki which Ms Hart pointed to. The copy provided was one page and does not take the matter any further as it contained no useful information.
[69] Mr Jefferson pointed out that a consideration of whether the child is settled requires a wider inquiry. It is not just about where the child is living. The inquiry looks at whether the child is happily settled. The “abductor” must show more than an adjustment, there must be establishment and emotional connection with the new
42 Secretary for Justice v HJ, above n 38.
environment. There was no evidence directed at those points either here or in the
Court below, which would allow consideration of those matters.
[70] As an alternative, Ms Hart says the matter could be remitted to the Family Court for hearing. It is common ground that it would be at least three months before the matter could be heard in the Family Court. That would mean the child would likely be retained in New Zealand for at least another three months while those inquiries were made and the court had the evidence it needed in order to consider the issue of whether the child was settled.
[71] I come back to the fact that this defence was not before the Family Court. It was up to Ms O to raise the issue and satisfy the Judge that the child had been here for
12 months and was settled. On the evidence before the Court on appeal it is not possible to undertake consideration of whether the child is settled.
[72] Amendments of notices of appeal at the last minute are generally not accepted. This amendment introduces a substantial new issue. There would be considerable delay before the matter could be reheard. It would require further evidence and various reports. Hague Convention matters should be dealt with speedily. It is incumbent on the Court’s administration and the Judges to ensure this is done.43 To accept this late new appeal ground in the circumstances and send the matter back for rehearing in the Family Court would be contrary the interests of justice. The issue of the day to day care of the child and whether she should be relocated to New Zealand can be considered by the appropriate Australian Court once applications are made.
[73] Accordingly, I refuse grant leave to amend the notice of application insofar as it relates to the application for a new ground of appeal raising opposition under s 106(1)(a) that the child has been in New Zealand for 12 months and is settled.
43 Care of Children Act 2004, s 107.
Acquiescence
[74] Ms Hart for Ms O submits that the Judge erred in holding that Mr R had not acquiesced to the removal of the child pursuant to s 106(1)(b)(ii) of the Act. That section provides:
106 Grounds for refusal of order for return of child
(1)If an application under section 10 5(1) is made to a Court in relation to the removal of a child from a Contracting State to New Zealand, the Court may refuse to make an order under section 10 5( 2) for the return of the child if any person who opposes the making of the order establishes to the satisfaction of the Court—
…
(b)that the person by whom or on whose behalf the application is made—
…
(ii) Consented to, or later acquiesce in the removal; or
[75] Although both concepts deal with the applicant’s acceptance of the removal or retention of the child. here is a fundamental difference between consent and acquiescence.44 Consent as an argument applies to what occurs before the child is removed, whereas acquiescence relates to what occurs afterwards.45 The focus in the present case is on acquiescence.
[76] Counsel both agreed that Ronald Young J appropriately summarised the relevant approach of the New Zealand Courts in his decision of JHL as follows:46
[24] New Zealand Courts have followed the House of Lords approach in Re H and Others. The fundamental principle identified in Re H is that whether a parent has acquiesced in the removal or retention of a child will depend upon the state of mind of the parent who is said to have acquiesced. The burden of proving a parent has acquiesced is on the abducting parent on the balance of probabilities. The one exception to the rule expressed by their Lordships was:
There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent
44 TLM v DFVK [2010] NZFLR 1104 (FC) at 1105.
45 Chief Executive of the Department for Courts v Phelps [2000] 1 NZLR 168 (CA) at 174.
46 JHL v Secretary for Justice [2008] NZFLR 54 (HC).
with such return, justice requires tat the wronged parent be held to have acquiesced.
…
[26] In Re H contains useful hints from their Lordships to trial Judges as to how to analyse evidence of parental intent in such circumstances. But such assistance should not be elevated to “principles”.
[77] The useful hints in Re H that Ronald Young J alludes to are as follows:47
To bring these strands together, in my view the applicable principles are as follows. (1) For the purposes of art 13 of the convention, the question whether the wronged parent has ‘acquiesced’ in the removal or retention of the child depends upon his actual state of mind. As Neill LJ said in Re S (minors) (abduction: acquiescence) [1994] 1 FLR 819 at 838: ‘… the court is primarily concerned, not with the question of the other parent’s perception of the applicant’s conduct, but with the question whether the applicant acquiesced in fact.’ (2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent. (3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law. (4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.
[78] It has been recognised that the evidence of acquiescence should be clear and compelling.48
[79] While not raised specifically as an issue before her the Judge dealt with the issue of acquiescence by Mr R that the child leave Australia and remain in New Zealand. She came to the conclusion that on the evidence this was not made out, with specific reference to Mr R’s lack of consent to the child traveling, Mr R’s steadfast opinion on the matter, and Mr R telling Ms O he would invoke the Hauge convention as early as May 2017.
47 Re H and Others (Minors)(Abduction: Acquiescence) [1997] 2 All ER 225 (HL) at 237.
48 Clarke v Carson [1996] 1 NZLR 349, (1995) 13 FRNZ 662 (HC) at 667; Secretary for Justice v
Penney (1995) 13 FRNZ 827.
[80] Ms Hart argues that the Judge was wrong to conclude there was no evidence to support acquiescence. Specifically, she pointed to the fact that Mr R knew she was pregnant and denied paternity (although he eventually accepted he was the father). Ms Hart also points to Mr R’s behaviour over and above the text messages he sent claiming he wanted to be in the child’s life. Ms Hart says Mr R “blows hot and cold”, for example claiming as early as May 2017 that he would make a Hague application, but failing to actually do it until after a full year had passed. Ms Hart claimed Mr R was ambivalent in whether his daughter remained in New Zealand. The evidence establishes that from not only a subjective but an objective viewpoint Mr Riley did not acquiesce.
[81] The Judge concluded that on the evidence acquiescence was not made out. I agree with that conclusion. I find that there is no clear or compelling evidence which would establish Mr R acquiesced to his daughter remaining in New Zealand
Conclusion
[82] Accordingly, I refuse grant leave to amend the notice of application insofar as it relates to the application for a new ground of appeal raising opposition under s 106(1)(a) that the child has been in New Zealand for 12 months and is settled.
[83] In relation to the added ground of acquiescence which had earlier been abandoned, I note no prejudice to nor opposition raised by Mr Jefferson. I grant the extension of time to allow that ground of appeal.
[84] I grant leave extending the time for the bringing of the original appeal as lodged.
[85] I do not consider the Judge made any errors. I therefore dismiss the appeal.
Costs
[86] Counsel addressed me on costs. Mr Jefferson indicated that the Central
Authority who appointed him to represent the respondent would not be seeking costs
however he asked that they be reserved. I note that Ms O is likely to be or is legally aided.
[87] Accordingly, I reserve costs. Counsel are to file a joint memorandum (if possible) or separate memoranda (if not) within 14 days of the date of this judgment
as to costs if an order is to be sought.
Grice J
Solicitors:
Hart & Associates, Auckland
2
0