P v S

[2021] NZHC 2768

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,

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

CIV 2021-485-131

[2021] NZHC 2768

BETWEEN

P

Appellant

AND

S

Respondent

Hearing:

28 October 2021 via Teams

Counsel:

J L Forrest for Appellant

M M van den Bergh for Respondent

Judgment:

15 December 2021

JUDGMENT OF MALLON J

Introduction

[1]    This appeal concerns the care arrangements of T, a child, and more particularly whether P, his father, may take him to Argentina from time to time. The Family Court made parenting orders that did not permit this.1 P applies for leave to appeal that decision. He also applies for leave to adduce evidence in support of his appeal. This Court has earlier determined that the leave application and the application to adduce evidence should be determined at the same time as the substantive appeal.2

1      S v P [2021] NZFC 1117.

2      P v S HC Wellington CIV-2021-485-131, 19 April 2021; and P v S HC Wellington CIV-2021-485- 131, 6 July 2021.

P v S [2021] NZHC 2768 [15 December 2021]

Background

[2]    S and P were once married and together they have a child, T. S is French. P is Argentinian. They met in the United States, where T was born in February 2017, but they have lived in New Zealand for some time. S and T moved to New Zealand in July 2017, but P has lived here since 2007 with intermittent periods spent overseas.

[3]    The relationship between S and P broke down. In February 2019, S applied for and was granted a without notice protection order and interim parenting order amongst other things. Following a defended hearing, in November 2019 the temporary protection order was removed and no final protection order was made.3 At various times, variations were made to the interim parenting orders.

[4]    S also applied for relocation to France. This application was to be heard on  16 and 17 September 2020. At or shortly before 16 September 2020, S advised that this application was not being pursued. This was because S had obtained New Zealand residency and intended to remain living here. With the parties’ agreement, a Family Court PHP (or a parenting hearing programme) took place on 16 September 2020 instead, to progress the care arrangements for T.4

[5]    At the PHP, the parties agreed those care arrangements subject to the issue of international travel. Both parties wished to take T on overseas trips: S wished to take T to France (where her family is) and P wished to take T to California (where P’s children from a former relationship lived). P also raised the possibility of travel to Argentina (where his family live). It was proposed that this issue would be addressed by written submissions and a “chambers hearing” (meaning that the Judge would determine the matter on the papers).

3      S v P [2019] NZFC 9635.

4      This was described by counsel as “like a settlement conference with teeth”. The parties are encouraged to reach agreement but, if they do not, the Judge makes the decision. The Judge controls the process, asking questions of the participants before counsel have that opportunity.

[6]    The Judge issued an oral judgment at the conclusion of the PHP setting out the agreed care arrangements for T that would form part of a final parenting order.5 They included the following:6

In relation to international travel in 2021 I record there is agreement that [P] will be entitled to travel with [T] to California for a holiday for two weeks following which [S] will collect him from California and be entitled to take him to France for the four weeks. But then, obviously, for [T] to be in her care for a further two weeks on return to New Zealand to allow for quarantine requirements. Those arrangements assume that borders are open and travel is possible. If not then I record the parties’ agreement that during that northern hemisphere summer period of eight weeks each parent is entitled to have a holiday of up to two weeks on giving not less than two months’ notice. The intention of that holiday is as in terms of the summer holiday arrangements that that parent is personally responsible for [T’s] care. The holiday may include travel to a short haul destination defined as being not [more] than five hours’ flight time from Auckland. That leaves the issue of international travel in  the  northern  hemisphere  summer  and  international  travel   in   the New Zealand summer as the two remaining areas which I need to make a decision about and obviously the decision about international  travel  the New Zealand summer may impact or will impact on what arrangements need to be put in place for the Christmas period in subsequent years.

[7]    The Judge put in place a timetable for the filing of proposals and submissions about international travel, noting that affidavits were not required. The parties duly filed their respective proposals in October 2020.7

[8]    S’s proposal included her consent to T travelling to France, the United States of America and the Pacific Islands but that travel to any country would need to be agreed between the parties. Her proposal made no mention of travel to Argentina.

[9]    P responded with his proposal which added Argentina and Australia to the countries S consented to (noting that, like France and the United States, they were Hague Convention countries). P noted that he was born in Argentina and his family live there. He referred to the principles in s 5(e) and (f) of the Care of Children Act 2004 (that is, that a child should continue to have a relationship with his or her family and a child’s identity should be preserved and strengthened).

5      S v P [2020] NZFC 8140.

6      At [5(h)].

7      Their proposals also sought clarification on aspects of the order quoted above and corrected a typographical error (so that the sixth sentence correctly read “The holiday may include travel to a short haul destination defined as being not more than 5 hours’ flight time from Auckland” rather than “less”).

[10]   In response, S advised that she did not agree to T travelling to Argentina because:

Argentina is known to be non-compliant with the Hague Convention and [her] concern is that if [P] decided to remain in Argentina with [T], that it would be unlikely to comply with a request for the return of [T] under the Convention.

[11]   She annexed to her memorandum a copy of the July 2020 “Action Report on International Child Abduction” of the United States Department of State. She noted that the conclusion of this report stated that Argentina continued to demonstrate a pattern of non-compliance with the Convention. She also said that P had not provided evidence about when he last travelled to Argentina to see his family.

[12]   The lawyer for the child commented that international travel was going to be an important part of T’s life and the life of his parents, and that definition was necessary to avoid arguments and difficulties. He also commented that T could be expected to enjoy international travel and particularly seeing his relations and siblings in various parts of the world.

[13]   The Judge gave his chambers decision in February 2021 (noting that the restrictions on international travel at the time meant that the determination had not required priority).8

Family Court decision

[14]   The Judge recorded that the parties were agreed that T should be able to travel internationally with each parent for a six-week period during the Northern Hemisphere summer on an alternating basis and for a three-week period with each parent during the New Zealand summer on an alternating basis.

[15]   There were three issues requiring determination. The first issue was whether the previously agreed and ordered 2021 arrangements should be deferred for one year because ongoing travel restrictions meant they could not be implemented. The Judge determined that the 2021 arrangements should be deferred and put in place when international travel becomes possible.

8      S v P, above n 1.

[16]   The second issue was whether P should be able to elect to shift some of his travel to the Californian Easter break instead of the Northern summer period. The Judge determined that P should have that flexibility.

[17]   The third issue was whether P should be able to travel with T to Argentina for holidays or in the case of family medical emergency. On this issue, the Judge’s determination and reasons were as follows:

[12]      [P] wishes to be able to travel to Argentina. That is opposed by [S] primarily on the basis of Argentina’s alleged noncompliance with the [Hague] Convention.

[13]      I accept the submission that insufficient evidence has been provided as to how often [P] has travelled to Argentina in the past, how realistic it is that he would travel to Argentina in the future, what family he has in Argentina, what his relationship with those family members is like, and those sorts of things. I also accept that a legitimate concern has been raised in relation to Argentina’s compliance with the [Hague] Convention.

[14]      I am not prepared to authorise travel to Argentina on a global basis at this time, either for holiday or family emergency purposes.

The leave application

[18]   Leave is required to appeal the Family Court decision.9 There is no dispute about the matters to be taken into account when determining whether leave should be granted.10

[19]   In this case, P says the appeal raises a question of law and fact which is capable of bona fide and serious argument. P says the Court failed to consider whether he was a flight risk, failed to consider s 5(e) and (f) of the Act, determined the issue because of an absence of evidence when the process did not provide for supplying that evidence, and wrongly took into account the July 2020 report of the United States Department of State.

[20]   S says there is no seriously arguable material error of fact or law. She says the Court took into account the relevant factors, there was evidence on which the Court

9      Care of Children Act 2004, ss 46R and 143.

10     They are summarised in C v B [2021] NZHC 2703 at [17] and SFB v JEBH [2015] NZHC 2897 at [8].

could make its decision and it was up to P to fill any gaps in the evidence if he had wished to do so.

[21]   I consider that leave should be granted. This is partly because P has arguably been disadvantaged by the process that was followed. The 16 September 2020 hearing was originally intended to deal with S’s relocation application. In support of that application, S had filed evidence of her family relationships in France.

[22]   The 16 September 2020 hearing morphed into care arrangements because the time was not needed for the relocation hearing and the Judge, quite rightly, wanted to advance final care arrangements if they could be. In the main, they were able to be, and the parties also had some proposals and thoughts around arrangements for international travel. P’s focus at that time was in ensuring that he see his children in California and to have travel with T that coincided with that. But he did also raise travel to Argentina as something he might also like to do. No indication was given at the PHP that there might be an issue with this and P was not questioned about his connection to Argentina during the hearing.

[23]   The Judge’s process for determining international travel arrangements after the PHP expressly stated that evidence was not required. While P could have applied to adduce evidence in support of this arrangement, it seems that it was only in S’s reply memorandum that her opposition to it was expressed (albeit that Argentina was not included in the countries to which she consented in her first memorandum). If a lack of evidence was to count against P, the Judge might have forewarned P of that and given him the opportunity to provide it.

[24]   I also consider there is potential merit in the appeal. This is because the Judge’s reasons do not refer to s 5(e) and (f) of the Act. P is Argentinian, his family live there, and T is being raised to speak Spanish, along with French and English. T’s Californian siblings are Argentinian. Argentina is part of T’s heritage. In these circumstances there should be a good reason to decline travel to that country and the process leading to the Judge’s chambers decision did not allow the Hague Convention issue to be sufficiently considered.

The further evidence

Special reasons

[25]   The application for leave to adduce evidence on this appeal was initially opposed. That opposition was withdrawn. If the appeal was successful, for example, because there should have been the opportunity to adduce further evidence in the Family Court, the parties wished to avoid the time and cost of a further hearing in that Court. Their preference is that this Court determines the matter.

[26]   As a result of this agreed position, P and S each presented affidavit evidence and were cross-examined at the hearing before me. It is appropriate to grant leave for this evidence to be adduced.11 The special reason for doing so is that the process in the Family Court meant that relevant evidence was not before it. That prejudiced the consideration of P’s wish to be able to travel to Argentina with T. The parties wish to avoid another hearing in the Family Court. It is in the interests of justice to allow the evidence to be adduced.

P’s evidence

[27]   P is 50 years old and an IT professional. Before coming to New Zealand in 2007, he mainly lived in Argentina. P’s father, mother, two sisters and brother live in Argentina. One of his sisters has two children, who are aged in their twenties, and his brother has two children, who are five and nine years old. P also has extended family there (such as uncles and aunts). P has a good relationship with his family. His parents still live in the family home, his older sister and brother live nearby and his younger sister, who is studying for a post-graduate degree elsewhere in Argentina, visits the family regularly.

[28]   P’s parents visited him in New Zealand for around three months in 2009/2010. P went to Argentina and stayed with his family for about four months in 2015. This was following the relocation of his children from his former relationship to California with their mother.  Their mother is Argentinian.  After she separated from P,  she met

11     Property (Relationships) Act 1976, s 39B(b) and High Court Rules 2016, r 20.16.  See also B v A

[2020] NZHC 580 at [25] for a summary of the principles for leave.

her (now) husband, who worked as a diplomat with the Mexican Embassy. He was relocated to the Mexican Consulate in San Francisco in 2015. Under the parenting order made in 2015, they agreed to stay in California for seven years. P does not know whether they will remain in California from 2022 onwards and, if not, where they will relocate to as the husband may be posted elsewhere.

[29]   Over the past five years, P’s travel has been focussed on California to have contact with his children. Prior to COVID, he travelled there twice a year (during their Spring break in April and again during their extended summer break in May/June). On one occasion, his mother joined him from Argentina to spend time with P and his children in the United States. P believes some of his children living in America may come to live in New Zealand to study in the near future. The oldest of them is now 18 years old and the youngest is 12 years old. He also has a step-child who is aged 23 (a child of his former wife’s husband).

[30]   P says that he would love to travel to Argentina with all of his children, including T. That would enable them to spend time with their paternal family and to understand and embrace their culture. All his children speak Spanish. Due to economic circumstances and his parents’ health,  they  can  no  longer  travel  to  New Zealand. He would like the chance to take T to Argentina to meet them.

[31]   P was challenged in cross-examination about whether he would be able to afford to travel to Argentina if he was still also travelling to see his children in the United States or elsewhere. P said it would be a significant expense, but the children were more important and he was paying off his mortgage quickly. He believed he could and would like to travel every year but, given that T will also be travelling with S, he accepts that every second year was more realistic.

[32]   P was also asked about his contact with his family. He said he spoke weekly to his mother (by video or phone calls) and sometimes this was several times a week. He spoke to his father every two or three weeks but his mother passed on information from their calls to his father. He spoke to his brother and sister every few months but again his mother conveyed everyone’s news. T was sometimes involved in the calls

to P’s mother, but at four years old he was easily distracted and usually P called Argentina on days when he did not have care of T.

[33]   P was also challenged on not having any specific proposal for travel to Argentina for the court to consider. P responded that with the COVID situation and travel restrictions, he had no interest in travel anytime soon. At the moment, he does not regard any country as safe for travel. The purpose of his appeal is to have a direction that does not preclude him from travelling to Argentina in the future.

[34]   P says he is not a flight risk. He has lived in New Zealand for over 14 years. He became a New Zealand citizen in 2011. He has had continuous employment with his current employer for over 10 years. He purchased a house in 2013 and has lived there since then, except for a period following his separation from S when she had occupation of the home. He loves his home and the area. It is his “paradise” and it “would take a lot for [him] to give that up”. He “treasures living in Aotearoa” and “to suggest that [he] could go Rambo, change [his] life 180 degrees to escape somewhere with [T] is simply absurd”. He firmly believes New Zealand is the best place to live and he is grateful that T will have the chance to grow up here.

S’s evidence

[35]   S is a manager. Before coming to New Zealand in 2017, she lived in California for around 20 years. Before that she lived in France. She is opposed to P being permitted to travel to Argentina because of its poor record of compliance with the Hague Convention and because COVID is prevalent in that country. She considers travel to Argentina to be unrealistic with COVID and the related travel restrictions and quarantine requirements. Even if travel was possible, she is concerned that P would not comply with health and safety measures and restrictions. She is also concerned that, if there were travel disruption, P would not communicate that to her.

[36]   S met P’s mother when S and P were still in a relationship. She was included in a WhatsApp family group. She exchanged photos and messages with the family. She says that P would periodically get angry with the group, particularly with his father. He would leave the group for a few weeks or months and then rejoin it. When S and P separated, P had not been part of the group for a few weeks. The family were

happy for S to continue to be part of it and she has periodically sent and received photos of the children. She has also periodically had video calls with P’s mother and sometimes P’s father is part of those calls. They sometimes talk via Facebook Messenger and P’s mother and S’s mother also communicate through this service.

[37]   S questions whether it is important to P to take his children to Argentina because P has not done so before. She gave evidence of her understanding of P’s relationship with his family in California. She believes there to be high conflict between P and his former wife, that P’s mother travelled to California when P first visited the children because that visit was required to be supervised, that his former wife does not let him take the children out of California, and that his two older children do not communicate much with P. S provided more detail about some of this, but I do not regard this evidence as helpful to whether P should be able to take T to Argentina and so do not discuss it further.

[38]   S accepts that P has longstanding connections to New Zealand. She nevertheless considers he is a flight risk. She is aware that P owns a property in the Argentinian countryside. She understands it is wild bushland. She says P trained for three years as a park ranger to live off the land. She believes he “could very well disappear in Argentina without a trace. Given the prevalent corruption in Argentina, the risks are high”.

Hague Convention

[39]   P objected to the admissibility of the July 2020 report, referring to a number of Australian cases about this, including one where the Court was considering the return of a child to Argentina. In that case the Judge contacted Argentina through the international Hague network of Judges and obtained reassurance and directed the child’s return.12

[40]   Accepting, however, that the Court might allow the information to be adduced but give it less weight given its limitations, P and S each produced information about

12     Commonwealth Central Authority v Cotter [2016] FamCA 209 at [261]-[266].

Argentina’s compliance with the Hague Convention.13 P provided a letter from the Embassy of Argentina in New Zealand. This referred to published statistics for the period between 2001 and 2015 that, of all the cases dealt with by the Judiciary, 73 per cent ended up with the child’s return, seven per cent with a visitation arrangement, and the child’s return was declined in 20 per cent of the cases.

[41]   S acknowledged that the July 2020 report related to requests for children to return to the United States from Argentina. She provided an email from the manager of the Central Agency in New Zealand dated 18 July 2021. The manager advised that the most recent comprehensive report was prepared in 2017.14 She also said that the last case New Zealand had with Argentina was in 2018. In that case, the Court ordered the return of the children concerned and the case took 248 days to complete (which the manager described as “quite some time” and also said that information about the progress of the case was “very infrequent”).

Assessment of appeal

[42]   In my view, the appeal must be allowed. This is because the Judge’s reasons for determining that P could not travel to Argentina with T were insufficient. This is because:

(a)The July 2020 report relied upon did not relate to returns requested by New Zealand. It was not entitled to much weight. Moreover, it was also relevant to take into account P’s flight risk. There is nothing to indicate that the Judge considered this and, if he did, on what evidence he relied in doing so.

(b)The Judge did not refer to s 5(e) and (f) of the Act. I accept the Judge would have been well aware of them (and they were referred to during the September 2020 PHP). However, his reasons do not acknowledge

13 The Court may receive evidence whether or not it is admissible under the Evidence Act 2006: Family Court Act 1980, s 12A(4).

14 Professor Nigel Lowe and Victoria Stephens A statistical analysis of applications made in 2015 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction – Global Report (International Centre for missing and exploited children, October 2017).

that, if T is able to travel to Argentina to have time with his Argentinian whānau, immersed in Argentinian culture, those principles are advanced, especially if P has retained his connections with Argentina.

(c)The Judge relied on the absence of evidence of P’s connection with Argentina. Given the process leading to the Judge’s decision, it would have been appropriate to have allowed P the opportunity to provide evidence about this if it was going to count against him.

[43]   S says that the Judge would have taken into account a range of other matters, including that T was still young, there were other avenues for T to maintain a connection with his Argentinian heritage and wider family, and the COVID situation. The Judge, however, did not articulate these reasons and it would be speculating to say that they were also reasons for his decision. I accept that the Judge’s decision did not preclude a specific proposal for travel to Argentina being permitted at some time in the future and it would also be possible for P to apply to vary the parenting orders if there was a material change in circumstances. However, if there were insufficient grounds to decline the general permission that had been sought as I have found, the appeal should be allowed. P should not be required to go back to the Family Court when he wishes to arrange travel to Argentina with T (whether for a holiday or an emergency) to vary the final parenting orders to enable this to occur or to wait for a material change of circumstances.

[44]   In addition to quashing the Judge’s decision on this point, the question is whether the proper course is now to return it to the Family Court for reconsideration or whether I should make the decision instead. The parties’ preference is for the latter course and that is why the further evidence was adduced on an unopposed basis. This having occurred, I am in a position to make the decision. I accept that returning it to the Family Court would involve further time and cost. There have already been COVID-related delays with the proceeding. I consider the appropriate course is that I make the decision.

[45]   I am satisfied that P should be able to use some of his allocated international travel time to travel to Argentina when he wishes to do so and it is safe to do so. This is for the following reasons.

[46]   I am satisfied that P has close connections with Argentina. That is where he is from and where his family live. I accept P’s evidence that he is in regular communication with his mother. It does not count against him that from time to time he gets angry with members of his family and does not communicate with them. That is a not uncommon family dynamic even in close families. I accept that P does intend to take T to Argentina to meet his family in person when it is possible and safe to do so. The fact that P went to Argentina after the break-up of his first relationship confirms the importance of the place to P. Given those close connections, s 5(e) and

(f) of the Act favour P being able to take T to Argentina.

[47]   Argentina may not have the best record under the Hague Convention but the July 2020 report did not relate to New Zealand or provide comparisons with France, for example.15 It is of note that the last case New Zealand had with Argentina did result in a return, albeit one that took some time. More importantly, I am satisfied that P is not a flight risk. I accept he has made his life here and wishes to raise T here. S accepted in cross-examination that P complies with court orders. The lawyer for the child did not raise P’s flight risk or concerns about his compliance with court orders in his memorandum. I understand S is worried about P’s flight risk but objectively it is not a real one.

[48]   S’s evidence about P’s strained relationship with his former wife and the impact of that on his relationship with his children is not relevant. What is more relevant is that, despite the challenges of keeping involved with his children who live in another country, P has been determined to stay connected with them and has travelled every year to ensure that this occurs.

15 For example, in the October 2017 Report, above n 14, provided by S, one set of statistics showed the average number of days from receipt of an application under the Convention to final outcome, with Argentina at 75, France at 177 and New Zealand at 100. Another set of statistics showed the average number of days taken to send such matters to court and the average number of days for the court to reach its decision, with Argentina at  117  and  49,  France  at  61  and  125,  and New Zealand at 18 and 87.

[49]   Lastly, I am satisfied that P wishes the best for T. That makes it unlikely that P would take T to Argentina any time in the near future (with the COVID pandemic still an issue) and that, if and when he does wish to do so, he will have T’s safety in the forefront of his mind. The parenting orders enable travel to California and France, both of which have active COVID cases and vaccination rates that may be lower than in New Zealand. They also permit travel to short-haul destinations, including Australia and the Pacific Islands. As they were made in February 2021 in the knowledge that COVID remained a global issue, they contemplate that the parents will exercise common sense and act in T’s best interests. The same assumptions should be made in relation to travel to Argentina.

Result

[50]   Leave to appeal is granted. Leave to adduce evidence in support of the appeal is also granted.

[51]   The appeal is allowed. The Family Court’s decision to decline permission for P to travel with T to Argentina is quashed. The final parenting orders are amended to insert “and/or Argentina” after “California” in the second line of paragraph 12 of the orders. Paragraph 18 of the orders is also deleted.

[52]   Leave is reserved to the parties if there is any issue as to costs. If there is, memoranda (or preferably a joint memorandum) should be filed by the end of January 2022.

Mallon J