Punter v Secretary for Justice
[2006] NZCA 533
•29 June 2006
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ANYPUBLICATION OF A REPORT OF THESE PROCEEDINGS MUST COMPLY WITH S 139 OF THE CARE OF CHILDREN ACT 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA221/05
BETWEEN LENA-JANE PUNTER Appellant
ANDTHE SECRETARY FOR JUSTICE AS THE NEW ZEALAND CENTRAL AUTHORITY EX-PARTE ADAM PUNTER OF AUSTRALIA
Respondent
Hearing: 8 December 2005
Court: Anderson P, Glazebrook, William Young, O'Regan and Robertson JJ Counsel: P D McKenzie QC and P A C Foster for Appellant
C R Pidgeon QC for Respondent
Judgment: 29 June 2006
JUDGMENT OF THE COURT
A The appeal is allowed and the order for the return of the children is set
aside.
B There is no award of costs.
REASONS
Anderson P, Glazebrook, William Young, O’Regan JJ [1] Robertson J [220]
PUNTER V THE SECRETARY FOR JUSTICE AS THE NEW ZEALAND CENTRAL AUTHORITY EX- PARTE ADAM PUNTER OF AUSTRALIA CA CA221/05 [29 June 2006]
(Given by Glazebrook J)
Table of Contents
Para No
Introduction [1] The legislation [7] Implementation of the Hague Convention [7] Interpretation principles [10] Purpose of the Hague Convention [13] Applications for return [18] Habitual residence [20] Other definitions [26] Orders for return [28] Speedy determination [29] Background [30] This Court’s first decision in this case [47] Judge Ullrich’s decision [53] Goddard J’s decision [62] Submissions on behalf of Mrs Punter [74] Submissions on behalf of Mr Punter [78] Issues [84] Status of first Punter decision [85] Does SK v KP apply? [87] Should there be a parent-centred approach? [91] Parental purpose of delimited stay [109] Domicile and habitual residence [110]
Lord Scarman’s definition [115] Delimited period cases [124] Cases referred to by Mr Pidgeon [142] Shuttle custody [153] The cases [154] Analysis [165] Civil and common law jurisdictions [170] Was there a unilateral change of purpose? [173] Policy issues [175] Should SK v KP be overruled? [188] Discussion of Judge Ullrich’s decision [189] Discussion of Goddard J’s decision [204] Conclusion and result [218]
[1] This appeal concerns the question of habitual residence under the Hague
Convention on the Civil Aspects of International Child Abduction of 25 October
1980 (the Hague Convention).
[2] Mr and Mrs Punter married in Australia in 1995 and had two children. They separated in March 2001. In January 2002, Mrs Punter wished to relocate to New Zealand to be near her family. Mr Punter agreed that she could take the children with her on the terms set out in a document signed by Mrs Punter on 18 January
2002. The document recorded what is commonly known as a “shuttle custody” arrangement whereby the children were to spend two years in New Zealand with their mother and then be returned to Australia to spend the next two years with their father. The arrangement was to continue until the children were 18 years old.
[3] Some five months later, Mrs Punter applied to the Family Court in New Zealand for custody of the children. The New Zealand Central Authority responded by making an application under s 12 of the Guardianship Amendment Act 1991 (the Act then implementing the Hague Convention). By judgment, now reported as Punter v Secretary for Justice [2004] 2 NZLR 28, this Court, by majority (Blanchard and Glazebrook JJ), held that Mrs Punter’s application for custody did not amount to a retention of the children. There could, in the circumstances, be no retention until the end of the two-year period. At that time, the question of the habitual residence of the children would need to be determined. Blanchard and Glazebrook JJ, in separate judgments, provided guidance as to how that question might be approached.
[4] The two-year period having expired and the children not having been returned, the Central Authority renewed its application for the return of the children to Australia. By judgment of 20 December 2004, now reported at [2005] NZFLR
481, Judge Ullrich QC held that the children’s habitual residence at the time of retention (which was agreed to be 7 February 2004) was New Zealand. Her decision was largely based on the shuttle custody nature of the arrangement and the extended period of day to day living in New Zealand. Judge Ullrich accordingly refused the application for the return of the children.
[5] On appeal, by judgment now reported at [2006] NZFLR 255, Goddard J held that the children’s habitual residence remained in Australia. She considered that, absent exceptional circumstances, the entry into a long term shared custody arrangement involving children spending delimited periods of time in another jurisdiction should not change their habitual residence. Goddard J suspended the making of orders for the return of the children to enable Mrs Punter to decide whether she would seek leave to appeal to this Court or whether she was prepared to allow the Australian Courts to determine custody. She also left open the question of the conditions to be attached to any order for the return of the children to Australia.
[6] Leave to appeal to this Court having been granted (by consent) on
11 November 2005, Mrs Punter now appeals against Goddard J’s decision.
The legislation
Implementation of the Hague Convention
[7] The Guardianship Amendment Act 1991 (the Amendment Act) was enacted to incorporate the Hague Convention into New Zealand Law. The Convention was annexed as a schedule to the Amendment Act and the provisions of the Amendment Act itself to a large extent mirrored the main provisions of the Hague Convention.
[8] The Care of Children Act 2004 repealed and replaced the Guardianship Act
1968 on 1 July 2005. Part 2, subpart 4, ss 94 – 124 of the Care of Children Act replaced the Amendment Act provisions relating to the Hague Convention. As was the case under the Amendment Act, the Convention itself is annexed to the Care of Children Act in Schedule 1. Section 94 of the Care of Children Act sets out the aims of the subpart as follows:
94 Purpose of this subpart
The purpose of this subpart is to—
(a) implement in New Zealand law the Hague Convention on the Civil
Aspects of International Child Abduction; and
(b) provide for related matters; and
(c) replace the Guardianship Amendment Act 1991.
[9] Section 160 of the Care of Children Act provides that all proceedings under the Guardianship Act that were not withdrawn or finally determined by 1 July 2005 are to continue under the Care of Children Act. The provisions of the Care of Children Act relevant to this case are, however, substantially to the same effect as those in the Amendment Act.
Interpretation principles
[10] This Court has held that the provisions of the Amendment Act should be interpreted consistently with the Convention and the manner in which it is interpreted in other Contracting States – see Dellabarca v Christie [1999] 2 NZLR
548 at 551 and Chief Executive of the Department for Courts v Phelps [2000]
1 NZLR 168 at [14]. The same will obviously apply to the Care of Children Act.
[11] The interpretation principles set out in the Vienna Convention on the Law of Treaties (1155 UNTS 331, entered into force 27 January 1980) are thus relevant. Those principles were applied by the Supreme Court in Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289 at [24] and were discussed in some detail in Glazebrook J’s judgment in Zaoui v Attorney-General (No 2) [2005] 1 NZLR 690 at [128] - [130]. The Vienna Convention requires treaties to be interpreted in good faith in accordance with the ordinary meaning of the words as seen in their context and in the light of the treaty’s object and purpose. In Zaoui, Glazebrook J pointed out that this approach to interpretation is effectively the same as New Zealand’s approach to the interpretation of statutes as set out in s 5 of the Interpretation Act
1999, although there are a number of other provisions of the Vienna Convention with no direct counterpart in the Interpretation Act. For example, under art 31(3)(b) of the Vienna Convention, subsequent practice in the application of a treaty by state parties is to be taken into account in its interpretation. The nearest analogy in the Interpretation Act is s 6 which provides that enactments apply to circumstances as they arise.
[12] Glazebrook J (at [131] of Zaoui) said that, if there was a divergence between the interpretation of a provision under domestic principles and that under the Vienna Convention, it would be a matter of statutory interpretation as to whether domestic or international interpretation principles were meant to apply. As in that case the statute directly referred to the Refugee Convention, she considered that this clearly pointed to the international interpretation principles applying. Given the direct reference to the Hague Convention in the Care of Children Act and its annexure to the statute, the international interpretation principles would thus apply in this case, if there is any divergence.
Purpose of the Hague Convention
[13] The Hague Convention deals with the protection of rights of custody and rights of access in a cross-border situation. The preamble provides as follows:
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.
[14] Article 1 of the Convention states that its objects are:
(a)to secure the prompt return of children, wrongfully removed to or retained in any Contracting State; and
(b)to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
[15] One of the most influential early commentators on the Hague Convention was Professor Pérez-Vera, Professor of International Law at the University of Madrid and the Rapporteur to the Commission that drafted the Convention – see Pérez-Vera Explanatory Report to the Convention on the Civil Aspects of International Child Abduction (Acts and Documents of the 14th Session, Vol III,
1982) (the Pérez-Vera report).
[16] In that report, Professor Pérez-Vera points out (at para 19) that the Convention makes no attempt to regulate the problem of the award of custody or access rights. Rather, it rests implicitly on the principle that any debate on the merits of the question should take place before the competent authorities in the state where the child had its habitual residence prior to its removal or retention. At para 11 she notes that both removal and retention result in a child being taken out of the family and social environment in which his or her life has developed. She also speaks in that paragraph and the following paragraphs of the aim of the Convention being to avoid forum shopping by the party abducting or retaining the child.
[17] 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.
Applications for return
[18] Section 105(1) of the Care of Children Act, which is in similar terms to the previous s 12(1) of the Amendment Act, deals with applications for the return of children. It provides as follows:
105 Application to Court for return of child abducted to New Zealand
(1) An application for an order for the return of a child may be made to a Court having jurisdiction under this subpart by, or on behalf of, a person who claims—
(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.
[19] The concept of habitual residence is thus one of the key factors in determining applications under s 105(1).
Habitual residence
[20] The term habitual residence has been used in a number of Hague Conventions. It was first used in relation to children in the Hague Convention on Guardianship of 1902 and has been used in a number of subsequent Hague Conventions dealing with the international protection of children, family and property relations, international legal co-operation and litigation, and international commercial and financial law. See, for example, the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children of 19 October 1996 (Child Protection Convention), the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of 29 May 1993, the Convention on the International Protection of Adults of 13 January 2000, the Convention on the Law Applicable to Products Liability of 2 October 1973, the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters of 1 February 1971 and the Convention on Civil Procedure of 1 March 1954.
[21] There is no substantive definition of habitual residence, either in the Care of Children Act, in the Hague Convention itself or in any of the other Hague Conventions. The definition of habitual residence in s 95 of the Care of Children Act merely deals with the situation where a Contracting State has more than one system of law. The lack of a substantive definition is deliberate. The inclusion of a definition of the term habitual residence seems to be proposed whenever a Hague Convention is to contain a provision based on this concept but such proposals have, thus far, been unsuccessful. For example, the Special Commission rejected attempts to include a definition of habitual residence in the 1996 Child Protection Convention, referred to at [20] above.
[22] Lagarde Explanatory Report on the 1996 Hague Child Protection Convention (Proceedings of the 18th Session, Vol II, 1998) states (at para 40) that a positive definition had been proposed but it went against the Conference’s tradition and
received no support. He points out that it would have risked disturbing the interpretation of numerous other conventions utilising the same concept. The Special Commission also rejected a United States proposal defining situations which would generally not result in change of habitual residence, although the discussions showed that the Commission approved certain elements of it. Thus it was accepted, for example, that the temporary absence of the child from the place of his or her habitual residence for reasons such as vacation, school attendance or the exercise of access rights did not usually modify the child’s habitual residence.
[23] Laurence Collins (ed) Dicey and Morris on the Conflict of Laws (Vol 1 13ed 2000) explains the policy behind the lack of a substantive definition of habitual residence in the Hague Conventions at 149 - 150:
No definition of habitual residence has ever been included in a Hague Convention; this has been a matter of deliberate policy, the aim being to leave the notion free from technical rules which can produce rigidity and inconsistencies as between different legal systems. In those contexts, the expression is not to be treated as a term of art but according to the ordinary and natural meaning of the two words it contains.
[24] Similarly, de Winter “Nationality or Domicile? The Present State of Affairs” (1969) 128 Recueil des cours de l’Académie de droit international de la Haye
346 explains (at 428) that the absence of a definition of habitual residence gives the courts more latitude to decide, on the basis of all the factual data available and guided by their commonsense, whether or not a person has his or her habitual residence in a country.
[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 Punter 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 residence is considered to be a mixed question of fact and law: see Feder v Evans-Feder 63 F3d 217 (3rd Cir, 1995) at 222, Silverman v Silverman
338 F3d 886 (8th Cir, 2003) at 896, Delvoye v Lee 329 F3d 330 (3rd Cir 2003) at
332 and Mozes v Mozes 239 F3d 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.
Other definitions
[26] Removal is defined in s 95 as meaning removal or retention in terms of art 3 of the Convention. Article 3 of the Hague Convention provides as follows:
Article 3
The removal or the retention of a child is to be considered wrongful where— (a) it is in breach of rights of custody attributed to a person, an institution
or any other body, either jointly or alone, under the law of the State in
which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
[27] Rights of custody are defined in s 97 of the Care of Children Act as follows:
97 Rights of custody defined
For the purposes of this subpart, rights of custody, in relation to a child, include the following rights attributed to a person, institution, or other body, either jointly or alone, under the law of the Contracting State in which the child was habitually resident immediately before the child's removal or retention:
(a)rights relating to the care of the person of the child (for example, the role of providing day-to-day care for the child); and
(b) in particular, the right to determine the child's place of residence.
Orders for return
[28] Section 105(2) provides that, if the Court is satisfied that the grounds set out in s 105(1) are made out, then it must make an order to return the child to the person or country specified in the order, subject to s 106. Section 106 sets out a number of grounds upon which an order can be refused. It provides as follows:
106 Grounds for refusal of order for return of child
(1) If an application under section 105(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 104(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
(b)that the person by whom or on whose behalf the application is made— (i) was not actually exercising custody rights in respect of the child
at the time of the removal, unless that person establishes to the
satisfaction of the Court that those custody rights would have been exercised if the child had not been removed; or
(ii) consented to, or later acquiesced in, the removal; or
(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
(d)that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to give weight to the child's views; or
(e) that the return of the child is not permitted by the fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.
(2) In determining whether subsection (1)(e) applies in respect of an application made under section 105(1) in respect of a child, the Court may consider, among other things,—
(a)whether the return of the child would be inconsistent with any rights that the child, or any other person, has under the law of New Zealand relating to political refugees or political asylum:
(b)whether the return of the child would be likely to result in discrimination against the child or any other person on any of the grounds on which discrimination is not permitted by the United Nations International Covenants on Human Rights.
(3) On hearing an application made under section 105(1) in respect of a child, a Court must not refuse to make an order under section 105(2) in respect of the child just because there is in force or enforceable in New Zealand an order about the role of providing day-to-day care for that child, but the Court may have regard to the reasons for the making of that order.
Speedy determination
[29] Finally, we point to s 107, which provides that applications must be dealt with speedily:
107 Applications to be dealt with speedily
(1) A Court to which an application under section 105(1) is made must, so far as practicable, give priority to the proceedings in order to ensure that they are dealt with speedily.
(2) Subsection (3) applies to an application made to a Court under section
105(1) in respect of a child if the application is not determined within the period of 6 weeks commencing on the date on which the application is made.
(3) The Authority may, and must if requested by the applicant or the Central Authority of the Contracting State from which the child was removed, request the Registrar of the Court to supply a statement of the reasons why the application has not been determined within that period, and the Registrar must, as soon as practicable, supply the statement to the Authority.
(4) The Authority must send a copy of the statement to the applicant or, as the case may require, the Central Authority of the relevant Contracting State.
Background
[30] The parties relied before Judge Ullrich on material filed in relation to the first application as well as updating affidavits filed by both parties. Affidavits for the first application were filed by Mrs Punter on 3 July 2002 and 13 November 2002 and by Mr Punter on 16 September 2002 and 26 November 2002. Mr and Mrs Punter filed updating affidavits on 28 June 2004 and 8 June 2004 respectively. There was also some cross-examination of the deponents, including Mrs Punter, before Judge Ullrich. Mr Punter was not cross-examined but was present at the hearing. For
convenience we summarise all of the evidence, including the matters dealt with in the previous judgment of this Court.
[31] Mr and Mrs Punter’s two children are a girl (A) born on 3 April 1996 and a boy (B) born 28 August 1998. Both children were born in Australia, that being where their parents had met and married. Mr Punter was born in England and went to live in Australia in 1973. He is an Australian citizen. Mrs Punter is a New Zealander who had been in Australia for some two years before her marriage, which took place in 1995. After their marriage, Mr and Mrs Punter lived in Brisbane in army accommodation. They separated for a time when A was about a year old. Mrs Punter was the primary caregiver of A during this time. They reconciled and began living together again before B’s birth. The family lived in Brisbane for some two and a half years before relocating to Sydney for some fourteen months.
[32] Mr and Mrs Punter separated again on 22 March 2001. At first there was a joint custody arrangement, with the children spending four days with the mother and the rest of the week with the father (except when he was away on service with the army). In June 2001, however, Mrs Punter moved to a more distant suburb with the children and the earlier arrangement was no longer practical. There is some dispute between the parents over the extent of Mr Punter’s contact with the children after Mrs Punter’s move but it is clear that the children stayed with their father at least one weekend in two on average.
[33] On 7 January 2002, Mrs Punter told Mr Punter that she wished to come to New Zealand with the children. Mr Punter immediately applied for various orders to secure his access and guardianship rights, including an order preventing the removal of the children from Australia. On 18 January 2002, the parties reached agreement on the arrangement whereby the children were to alternate between New Zealand and Australia at two-year intervals until they were 18 years old. This was embodied in a statutory declaration prepared by Mr Punter for Mrs Punter to sign. The declaration was never, however, registered with the Australian courts and it appears was prepared without either party taking legal advice. It provided in relevant part as follows:
That Adam Punter and myself have joint parental responsibility, in consultation with each other, for making decisions about the long term care, welfare and development of the said children of the marriage.
That each parent have responsibility for making decisions about the day to day care and development of the said children of the marriage.
That upon a [sic] amicable agreement with Adam Punter to take the said children of the marriage to New Zealand, I agree to return the children to Adam Punter for full care for a period in two years for two years as so Adam Punter can maintain a relationship with the said children, I agree to continue with this until the children are 18 years old. …
That upon a [sic] amicable agreement with Adam Punter to take the said children of the marriage to New Zealand, I agree to pay for a return airfare for children to New Zealand or a return airfare for the said children of the marriage to Australia to reside with Adam Punter. I agree to pay for this once a year in December. …
That if in two years time of this date 6.2.02 I don’t return the said children of the marriage or I don’t adhere to the above terms and conditions I forfeit all support, including child maintenance from Adam Punter.
[34] As a consequence of the arrangement reached, Mr Punter withdrew his proceedings and, on 7 February 2002, Mrs Punter left with the children to come to New Zealand. On 4 July 2002 she applied to the Family Court in New Zealand for custody of her children. The application was made on notice and she disclosed the shuttle custody arrangement to the Court, annexing the statutory declaration to her affidavit in support of her custody application.
[35] Mr Punter responded with a request under the Hague Convention for the return of the children. In Mrs Punter’s affidavit of 13 November 2002 in opposition to the application for the return of the children to Australia, she said that, at the time of signing the statutory declaration, she had fully intended to abide by the agreement but, as she and the children had begun to settle in New Zealand, she decided that returning the children to Australia by 6 February 2004 might not be in their best interests. She also indicated that, since being served with the Hague Convention application, she had been thinking about where the best interests of her children may lie and had decided that she may possibly return with them to Australia.
[36] Mrs Punter’s affidavit of June 2004 dealt with the position of the children since the earlier hearing. She deposed that the children had become well settled in New Zealand. B attended two kindergartens when they first arrived and has now
progressed, with his kindergarten friends, to the same school as his sister. He is involved in Sea Scouts and started playing soccer in 2004. A is doing well at school, is involved in Brownies and will begin gymnastics soon. The children have been involved in kapa haka at their school and are enjoying the Maori side of their heritage. Mrs Punter’s sister lives about two hours drive away on a farm with their father. One of the sister’s daughters is the same age as A and both Mrs Punter’s children have spent Christmas holidays at the farm.
[37] Mrs Punter has a new baby boy who was ten and a half months old at the time the affidavit was sworn (making him six and a half months old at the date of retention). She deposed that both A and B have a strong relationship with their baby brother. Mrs Punter, the baby’s father, Mr R, and the children live in a house owned by Mr R’s mother. They are hoping to buy the house from her when they have raised a deposit. Mr R has his family close at hand. His brother, M, has two children who are the same age as A and B. The children play together and Mrs Punter’s children have sleepovers at M’s house.
[38] Mrs Punter deposed to being very keen for the Hague Convention matters to be finally resolved so that a proper plan for access for Mr Punter can be put in place. She said that she has always been happy for Mr Punter to come to New Zealand to see the children and would be happy for the children to go to Australia for access “but obviously not while Hague Convention matters are proceeding.”
[39] In cross-examination, Mrs Punter agreed that it was shortly after she and Mr R began living together that she applied for custody of A and B. When asked whether that was a factor in her decision she said no and that her “primary factor” was that she did not want the children to be unsettled. Mrs Punter confirmed that she had been living in the same house as Mr R in Australia before she came to New Zealand and that he came over to New Zealand at the same time she did on the same plane. She said that he was not at that time her boyfriend. In an earlier affidavit dated 13 November 2002, Mrs Punter said that Mr R had, however, previously been her boyfriend in New Zealand before she moved to Australia in 1993.
[40] When Mrs Punter first came back to New Zealand in 2002 she lived with her sister but she and the children started living with Mr R two to three months later. She confirmed that she would return to Australia if the return of the children was ordered and admitted that she will not feel settled until these custody proceedings were settled. She said, however, that the children have been settled and the proceedings have not affected them, even though they know of them “but only in a very light way”.
[41] Mrs Punter said that she had come back to New Zealand in 2002 because she had extended family support here whereas she only had Mr Punter in Australia. She hoped, if she were required to go back, that Mr R would accompany her. She admitted that she had spoken to Mr Punter about returning to Australia but said that “this was early in the piece”. Now the children are very settled in New Zealand with their own lives and they are very much integrated into the small township they live in.
[42] Mr R’s brother, M, and his wife swore an affidavit attesting to the close personal relationship that has developed between A and B and their own children, as well as with the children of their neighbour. Their children think of A and B as cousins. In cross-examination, M’s wife said Mrs Punter had never discussed (at least in any detail) returning to Australia or the children returning to Australia. M was not cross-examined.
[43] One of Mrs Punter’s five sisters also swore an affidavit. She deposed that Mrs Punter and the children appear to her to have been welcomed into Mr R’s family who, she understands, have lived in the area for some forty years. Mrs Punter’s sister deposed to regular family functions and the fact that Mrs Punter’s children and her own stay with each other in the school holidays. She considered this had given them a greater sense of belonging and that they had been able to experience their Maori heritage in New Zealand. Her impression is that the children are happy at school with a lot of friends in the area. They are involved with outside school activities and sports. In cross-examination, she said that Mrs Punter had discussed the possibility of going back to Australia, she thought after the High Court hearing.
[44] Mrs Punter’s father deposed that A and B seemed to him to be settled. They are part of a large family and are also much supported by Mr R’s family. Mrs Punter’s father said that he generally came up once a year perhaps for a couple of months to see the children. He said that Mrs Punter had talked about a year before about going back to Australia to work.
[45] Mr Punter, in his affidavit of 28 June 2004, responded to the affidavits filed on Mrs Punter’s behalf but said that he only had limited knowledge of his children’s current circumstances. He deposed to his daughter having, in one of their weekly telephone conversations, mentioned two boyfriends, one of whom is the son of a friend of his and Mrs Punter’s and who resides on the Gold Coast. Mr Punter deposed that he considered this to be evidence of his daughter’s ongoing connection to people and places in Australia. He also said that the children’s maternal aunt, with whom they have a close relationship, resides in Brisbane.
[46] Mr Punter said that, in his weekly telephone calls, the children are very happy to talk to him and constantly ask when they can see him and often say that they miss him. He has not visited them in New Zealand as he wants to maintain his finances to ensure he can fund their return to Australia. For completeness, we note that Mr Punter was discharged from the Australian army for medical reasons in March
2002. He is in receipt of a disability pension and has moved back to Brisbane to live.
This Court’s first decision in this case
[47] As indicated at [3] above, this Court held in its earlier decision, by majority, that there had been no retention of the children and so the application for return was premature. Mr Pidgeon indicated from the Bar that this decision has been causing practical problems. If that is so, then this may be a reason for the Court to reconsider that decision in a subsequent case. In this case, however, the matter is res judicata as Mr Pidgeon accepts. We note, however, that this Court’s earlier decision was confined to the issue of whether an application for custody in itself constitutes a retention of the children contrary to the Hague Convention in circumstances where
the existence of a parental agreement had been disclosed and there was no intention of retaining the children in New Zealand if that custody order had been refused.
[48] The Court was also split on the question of habitual residence. This had not been dealt with in the Family Court. Goddard J had allowed the matter to be raised for the first time on appeal. Her decision, reported at [2003] 3 NZLR 54, held that the children’s habitual residence was Australia.
[49] In this Court, Gault P said that Goddard J should not have allowed the question of habitual residence to be argued for the first time on appeal. He did not, however, consider that the Court could revisit her decision on that issue. The conclusion that the children were habitually resident in Australia in July 2002 (which Gault P considered to be the relevant retention date) was one open to her and, in addition, was a finding of fact against which there was no right of appeal. We note this has since changed and an appeal lies to this Court (with leave) on matters both of fact and law – see s 145(1)(b) of the Care of Children Act and SK v KP [2005]
3 NZLR 590 at [31].
[50] Blanchard J considered that, in view of the importance of the habitual residence issue, Goddard J was right to allow it to be raised for the first time on appeal. He said, however, that it may have been better for the matter to have been remitted to the Family Court where it could have been determined after the parties had had the opportunity to adduce further evidence on the point. He said that the question of habitual residence was “logically prior” to that of retention. This is because, if the children were not habitually resident in Australia, any retention of them in New Zealand by Mrs Punter could not have been contrary to the Convention, notwithstanding that it was a breach of the agreement between the parents. He agreed with Gault P that the matter could not, however, be raised before this Court on appeal as it is well established that the question of habitual residence is a question of fact.
[51] Blanchard J went on to say that some observations could nevertheless be made on the subject of habitual residence for the guidance of the Family Court. He saw much force in the submissions made on behalf of Mrs Punter that this was not a
case in which the children were to be out of Australia for a temporary period only. They would return to Australia after two years but, equally, they would return to New Zealand at the beginning of the next two-year period and thereafter would spend equal amounts of time in the two countries. He also saw force in counsel’s warning that most of the cited cases, including Mozes v Mozes, are concerned with situations which do not involve the concept of shuttling. The only cases that had been referred to which did involve shuttle arrangements were Johnson v Johnson (Supreme Administrative Court, Sweden, Case No 7505-1995, 9 May 1996) and Watson v Jamieson 1998 SLT 180 (OH SC). He said that both decisions appear to have the support of the leading text, Beaumont and McEleavy The Hague Convention on International Child Abduction (1999) at 99 - 100.
[52] Glazebrook J, after an extensive discussion of the concept of habitual residence, concluded that Goddard J had made errors of principle that amounted to errors of law in her analysis of habitual residence. She would have remitted the question of habitual residence of the children to the Family Court to be determined in accordance with the principles she had outlined.
Judge Ullrich’s decision
[53] Judge Ullrich began by setting out a summary of the shuttle custody agreement in this case and the history of the proceedings. She then went on to describe the current situation of the children. She concluded:
[21] I find that the children have a well-established life in New Zealand with a settled routine involving social contacts, friends and family. The mother has contemplated a return to Australia and would be able to manage living there although it is clearly not her preference.
[54] Judge Ullrich said that the fact of habitual residence cannot be pre-determined by the parents. They can have an intention as to location and time to be spent and activities to be undertaken in that location but they cannot determine what will qualify as habitual residence. This is because habitual residence is a question of fact to be determined by an assessment of the settled purpose of the person or persons who have the legal care of the child and all the circumstances of the child within the jurisdiction alleged to be the habitual residence.
[55] Judge Ullrich said that the settled purpose should be determined on the basis of the matrix of fact envisaged at the time the parties agreed to any move and not on events after that time. In this case, the father’s intention or purpose must be ascertained from what he understood would occur in New Zealand, including the children’s home base and school activities. She went on to say:
[70] Where an agreement or order permits a child to be taken to another jurisdiction for a defined period of time (even as long as two or three years) and the intention, or settled purpose, is that the child will be returned at the end of that time, then the habitual residence will not change because the intention is for a temporary change in residence. If one parent reneges, the child will be returned to the original jurisdiction in terms of the Convention.
[71] Where parents agree to a “shuttle arrangement”, the determination is likely to be different because the intention or settled purpose is that the child will go backwards and forwards. Where one residence is not dominant in terms of time spent, cultural or familial connection, there are no facts on which to prefer one jurisdiction over the other as an habitual residence.
[72] In a “shuttle custody” case where there is an imbalance of time between the two countries, the place of habitual residence is likely to become the place where the child spends the most time. Although, it is possible to imagine that a child of say, French parents, going to school in New Zealand where one parent lives, and “holidaying” in France with the other parent, could retain an habitual residence in France because of the predominant family, cultural and social connection with France. Where time spent, schooling, and cultural context is similar in each place, it becomes more difficult to differentiate the two situations. Where the parents are from two different cultures and the children are in effect bicultural and have social connections with each jurisdiction, those factors may become neutral.
[56] Judge Ullrich then went on to consider the purpose of Mr and Mrs Punter at the time of entry into the agreement. She said that the settled purpose of both parents was for an initial period of two years in New Zealand. Both parents understood when they entered the agreement that the children were to live in New Zealand, go to kindergarten and school in New Zealand and spend time with their mother’s extended family and that they would maintain contact with their father by telephone and relatively infrequent visits. In the event that the mother became unable to care for the children or died, the children were, however, to be returned to their father in Australia.
[57] Judge Ullrich noted that, after the children arrived in New Zealand, the mother was to continue as primary caregiver of the children and the language they were to speak remained English. She remarked that the similarity between the
cultures and the constant primary parent would suggest that a new habitual residence could be acquired quickly. Notwithstanding this, she considered that the terms of the agreement meant that there was not a settled purpose that the children would lose their habitual residence in Australia on coming to New Zealand. She referred, in particular, to the provision that, if the mother became disabled or died, the children were to be returned to Australia.
[58] Judge Ullrich then went on to discuss whether the children’s habitual residence had become New Zealand by February 2004. She commented that, if Mrs Punter had abided by the terms of the agreement, the children’s connection to their father and his life in Australia and their own earlier life in Australia would have been more present and apparent for them. However, that sense of connection with Australia, even though it was the place of former residence, was not, in her view, sufficient to override an extended period of day-to-day living in New Zealand where there is at least equal familial, social and cultural connection.
[59] Judge Ullrich said that familiarity with a new country does not alter the habitual residence where a child is taken to another jurisdiction for a limited purpose such as an extended holiday or to accompany a parent who had a limited employment contract but in those situations the settled purpose is for a temporary change of residence only. In her view, the real point of difference in this case was the agreement for alternating periods of two years. If in such a situation each jurisdiction is compatible with the child’s culture or cultures and there is an equivalent family and social connection, then she said that the logical finding must be that there are serial habitual residences. She noted that the children have a family base in New Zealand and a strong cultural connection with this country. They have been attending school and have developed a social network. They have only had telephone contact with their father in Australia. She thus found that, by February
2004, the children had established an habitual residence in New Zealand.
[60] As to the policy issues that had been raised by Mr Pidgeon, Judge Ullrich considered that the terms of the Hague Convention are unlikely to cover every situation where a child is taken from one country to another. She said that shuttle cases of this kind are relatively rare as is borne out by the small number of cases
internationally which deal with such arrangements. In her view, such arrangements should not be encouraged as they are a parent-centred rather than a child-centred approach to parental disagreement. She did not consider that a finding that shuttle cases would often involve serial habitual residences would defeat the object of the Convention as most removal situations would continue to be covered.
[61] Judge Ullrich finished by saying that, as the children are habitually resident in New Zealand, there would be no return order and Mrs Punter’s custody application could continue. She said that this meant that, because that custody application would be dealt with from the point of view of the welfare of the children, there was a risk that the shuttle custody arrangement may not be enforced. She recognised that this may not be seen as “fair” to the father but opined that it would at least refocus the case on the best interests of the children rather than the rights of the parents.
Goddard J’s decision
[62] Goddard J began her judgment by setting out the background to the case, both factual and procedural. She noted that both Blanchard J and Glazebrook J, in the first Punter decision, had dealt with the question of habitual residence by way of obiter comments. She then discussed Judge Ullrich’s decision and the fact that the Judge had applied the principles set out by Glazebrook J.
[63] Goddard J considered that four aspects of Judge Ullrich’s decision required review or comment. They were the assessment of Mr and Mrs Punter’s settled purpose, whether there could be a concept of serial habitual residences for Hague Convention purposes, whether intention as to jurisdiction has any relevance to a determination of habitual residence and whether New Zealand had become the Punter children’s habitual residence by 7 February 2004, so that the Family Court in Australia should no longer be the proper forum for determining custody issues. She discussed these issues in turn.
[64] On the question of settled purpose, Goddard J considered that Mr and
Mrs Punter’s subjective intent could be ascertained from the terms of the agreement
they entered into, as confirmed by their affidavits filed. Goddard J noted that Mrs Punter had deposed that she had fully intended to abide by the agreement when she signed it. Thus Goddard J held that Mrs Punter’s subjective intent was to return the children to Australia at the end of the two-year period. As to Mr Punter, Goddard J said that his clear settled purpose was that New Zealand would not be, for the periods the children were to spend here, their habitual residence. His purpose was that they reside in New Zealand for two years and then be returned to Australia.
[65] In Goddard J’s view, the fact that Mr Punter immediately applied for the return of the children when he learned Mrs Punter was applying for their sole custody in New Zealand shows he never tacitly consented to a change in the children’s habitual residence in the Hague Convention sense. Goddard J also pointed to the evidence that Mrs Punter has never evinced a firm settled purpose of her own to remain in New Zealand. Mrs Punter’s plans about her own future had, in Goddard J’s view, always been uncertain.
[66] Goddard J concluded that Mr and Mrs Punter’s intention had been for a long term shared custody arrangement. To interpret the agreement otherwise was, in her view, not in accordance with the caselaw and the policy behind the Hague Convention. In addition, it carries the risk that no parent will, in the future, enter into a shared custody arrangement that involves moving to another jurisdiction for part of the shared time.
[67] Goddard J went on to discuss one more matter relating to settled purpose, that of deceit. She said that in this case there were only two possible scenarios. The first was that Mrs Punter conceded that Australia was the children’s habitual residence at the time she removed them and intended to abide by her agreement to return them but that she subsequently changed her mind and sought unilaterally to change the children’s habitual residence by seeking custody orders in New Zealand. The alternative view was that she did not enter into a truthful arrangement with Mr Punter at the time but deceived him. Goddard J noted that Judge Ullrich thought this may well be the case when the Judge said:
[102] There is a strong implication in this case that when the mother signed the deed drafted by the father she had already formed the intention not to go
through with the “shuttle agreement”. She signalled that intention within 6 months of her arrival in New Zealand by filing her application for custody in the New Zealand Family Court.
[68] Goddard J said that, in the event that Judge Ullrich was correct in this assessment and Mrs Punter did not intend at the time she entered into the agreement to honour it, then the role of deceit in Hague Convention cases needed to be considered, bearing in mind that the Convention is a contract between states. She said, referring to Isaac v Rice 1998 US Dist LEXIS 12602, that, in cases of deceit, length of stay in a new country may be found to be of little effect.
[69] Turning to the concept of serial habitual residences, Goddard J said that the notion that shuttle custody arrangements necessarily lead to serial habitual residences is inherently flawed as it takes outside the jurisdiction of the Hague Convention a whole class of shared custody arrangements. In her view, this is inconsistent with the purpose and scheme of the Hague Convention and the aims of that Convention as set out in art 1. She considered there to be a basic philosophical difference between the approach in common law jurisdictions (as shown by the case of Bickerton v Bickerton No 91-006694 (Cal. SC, 1991)) and that in Watson v Jamieson and Johnson v Johnson. The former should be preferred as, in her view, the common law approach is that there can only be one habitual residence for the duration of any shared custody arrangement. That habitual residence can only be altered by express or tacit agreement of the parents or by Court order.
[70] Turning to the question of intention as to jurisdiction, Goddard J held that such intention was relevant. Although Mr Punter may have been unaware of the Hague Convention, this did not disentitle him to its protection. Mr Punter understood his rights sufficiently to apply for custody in Australia and to alert the Commonwealth police to the possible wrongful removal of the children from Australia in breach of his parental rights. Goddard J saw no reason to depart from her finding in her first Punter decision that Mr Punter neither relinquished his parental responsibility under Australian law nor, by his actions, conceded jurisdiction to New Zealand.
[71] As to whether the children’s habitual residence had changed by February
2004, Goddard J noted that Judge Ullrich had found that neither New Zealand nor Australia was dominant in terms of time spent or cultural or familial connection. There were thus, in Goddard J’s view, no facts to prefer one jurisdiction over another as the children’s habitual residence. In Goddard J’s view, the factors that Judge Ullrich identified did not give New Zealand preference, whereas there were numerous factors that gave Australia priority.
[72] Goddard J noted that the children were born in Australia, they have Australian citizenship, they were living in Australia at the time the agreement was made, the agreement was signed in Australia at a time when custody proceedings were on foot and the arrangement was for the children to spend equal time in both jurisdictions. Further, Australia was conceded as the children’s country of habitual residence at the time they left Australia and it was still conceded as such nine months after they had arrived in New Zealand. Goddard J presumably is referring to the fact that habitual residence was conceded by Mrs Punter before the Family Court in December 2002, although Goddard J of course allowed that question to be re-opened on appeal – see at [48] above.
[73] Goddard J concluded that the rational preference was that Australia remained the Punter children's country of habitual residence for Hague Convention purposes as at 7 February 2004. She based that conclusion on an assessment of Mr and Mrs Punter's settled intention at the critical time, on the basis of the defined and delimited nature of their shared custody agreement, on the equal familial and cultural connections with both Australia and New Zealand, and on the additional features of birth and nationality. In the light of that conclusion, she determined that the proper forum to determine any custody dispute must be Australia. Goddard J accepted that, in exceptional circumstances, the forum could be overturned by other overriding factual considerations but not in an ordinary shared custody case of this nature.
Submissions on behalf of Mrs Punter
[74] Mr McKenzie QC, on behalf of Mrs Punter, submitted that Goddard J failed to treat the guidance provided by Blanchard and Glazebrook JJ in the first Punter
decision as binding directions on the principles that were to be followed in the determination of habitual residence. Alternatively, he submitted that Glazebrook J’s judgment is supported by SK v KP and should have been followed on that basis. In his submission, there are no grounds for this Court to depart from SK v KP in terms of the test set out in R v Chilton and Archbold CA333/04 and CA335/04 1 December
2005.
[75] Mr McKenzie submitted further that this Court should adopt the position set out in the shuttle custody cases, including the recent Canadian case of Wilson v Huntley (2005) 13 RFL (6th) 435 (Ont SCJ). In Mr McKenzie’s submission, where parties have agreed that there are to be alternating long periods of residence in each jurisdiction, the most reasonable inference is that the parties have a settled purpose that there be serial habitual residences. In his submission, even in cases where residence is intended to be for a one-off limited, defined period followed by a return to an existing habitual residence, this does not lead automatically to a finding that habitual residence has not moved to the new jurisdiction. Whether there has been a change in habitual residence depends, in his submission, on all the circumstances of the case.
[76] It was further submitted that the approach to habitual residence in shuttle custody cases is compatible with the purpose and scheme of the Hague Convention and Goddard J was wrong to hold otherwise. Mr McKenzie pointed to the statement in SK v KP that there can be tension between the two aims of the Convention – to deter retention and to ensure that a child’s future is determined in the jurisdiction where the child has the closest links. In his submission, it is necessary to avoid a parent-centred approach that emphasises enforcing parental agreements as against determining the underlying reality of the situation – see McGrath J’s comments in SK v KP at [22].
[77] Finally, Mr Foster, who argued this part of the appeal on behalf of Mrs Punter, submitted that there was no proper basis for Goddard J to reject the finding made by Judge Ullrich that the relevant factual matrix of the case favoured New Zealand as the habitual residence of the children as at 7 February 2004.
Submissions on behalf of Mr Punter
[78] Mr Pidgeon QC, on behalf of the New Zealand Central Authority, submitted first that the comments in the judgments of Blanchard and Glazebrook JJ on habitual residence in the first Punter decision were obiter and therefore not binding on Goddard J. In addition, he submitted that Goddard J was correct not to follow them. To the extent that the principles set out by Glazebrook J were confirmed by this Court in SK v KP that case should, in his submission, be overruled.
[79] Mr Pidgeon submitted that the traditional approach adopted in England, New Zealand and Australia is what Schuz dubs the parental rights model whereby both parents have the right to determine where a child should live and neither may change the child’s place of habitual residence without the consent of the other – see Schuz “Habitual residence of children under the Hague Child Abduction Convention - theory and practice” (2001) 13 CFLQ 1 at 10. In Mr Pidgeon’s submission, it is not possible for one parent unilaterally to change the habitual residence of a child and that is what Mrs Punter is attempting to do.
[80] Mr Pidgeon submitted that any parental agreement has to be for an indefinite stay in a jurisdiction for habitual residence to change. In his submission, where there is parental agreement for a delimited stay in another jurisdiction (however long that may be), the habitual residence of a child can never change, unless perhaps there is a very lengthy period of actual residence in the new jurisdiction (say five to ten years).
[81] In Mr Pidgeon’s submission, prior to the first Punter decision of this Court, the novel argument that in some way shuttle cases are different from other Hague Convention cases has only been applied in Scotland (Watson v Jamieson) and Sweden (Johnson v Johnson), essentially on what he submitted are Roman or civil law rather than common law principles. He noted that the decision is inconsistent with Bickerton v Bickerton. In Mr Pidgeon’s submission, it is important that New Zealand keeps in line with the common law jurisdictions with which we have the most to do.
Solicitors:
Mathew O’Byrne, Raumati for Appellant
Ministry of Justice for Respondent
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