O v The Queen - [2018] NZHC 2696

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 Respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading O v The Queen

Details

AGLC: O v The Queen [2018] NZHC 2696
Case: [2018] NZHC 2696
Decision Date: 17 October 2018

CaseChat Overview and Summary

In this appeal, Ms O appealed against a decision of the Family Court which ordered that her child be returned to Australia. Ms O argued that the Family Court Judge had erred in finding that the child was habitually resident in Australia immediately before her removal, in the way she treated the issue of settled intention, and in the way she treated the issue of acquiescence. The appeal was heard in the High Court. The appeal was dismissed by the High Court Judge. The High Court Judge found that the Family Court Judge was correct in her assessment that the child was habitually resident in Australia. Ms O argued that the child’s habitual residence was in New Zealand but the High Court Judge found that the evidence established that the child was habitually resident in Australia. The High Court Judge also found that there was no evidence to support that Mr R acquiesced to the removal of the child. The Judge concluded that the Family Court Judge had not erred in her decision.

Orders