Qamus v Rowley
[2017] NZHC 2260
•18 September 2017
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2017-404-795 [2017] NZHC 2260
UNDER the Care of Children Act 2004 and the
implementation thereby of the Hague Convention on the Civil Aspects of International Child Abduction 1980
IN THE MATTER
of an appeal against the decision of His Honour Judge Maude in the Family Court at Auckland on 20 March 2017
BETWEEN
QAMUS Appellant
AND
ROWLEY Respondent
Hearing: 23 August 2017 Appearances:
Appellant in person
L F Soljan for respondent
A J Cooke as lawyer for the childJudgment:
18 September 2017
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 18 September 2017 at 4:30pm pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Counsel: L Soljan, Auckland
A Cooke, Auckland
Copy to: Appellant in person
QAMUS v ROWLEY [2017] NZHC 2260 [18 September 2017]
[1] Victor Rowley, a 10 year old boy born in the United States, was brought to New Zealand in July 2016 by his mother, Danielle Qamus (formerly Rowley), in defiance of an order of the Probate and Family Court of Massachusetts (Massachusetts Court) that he should remain in the United States. Victor’s father, Damian Rowley, applied through the United States Authority under the Convention on the Civil Aspects of International Child Abduction (Hague Convention) for Victor’s return to the United States in accordance with the Hague Convention, implemented in New Zealand by the Care of Children Act 2004 (Act). That application was granted by the Family Court in Auckland in a decision of Judge Maude on 20 March 2017 (the Family Court decision).
[2] Ms Qamus appeals the Family Court decision. Although represented by counsel at the Family Court, Ms Qamus represented herself on this appeal, and she assured me at the hearing she was aware she could apply for legal aid.
Background
[3] Ms Qamus is a New Zealand citizen, born in Christchurch on 22 December
1983. Mr Rowley is an American citizen, born in Rochester, New York on 13 February
1983.
[4] Ms Qamus met Mr Rowley “on line” in an internet chat room in 2002, when they were both around 19 years of age.
[5] In 2004, after each had visited the other in their home countries, Ms Qamus moved to Massachusetts to be with Mr Rowley. She was 20 years old.
[6] On 1 June 2004, Ms Qamus and Mr Rowley married in Boston, Massachusetts.
[7] On 7 October 2006, Victor was born in Boston, Massachusetts.
[8] In February 2010, Ms Qamus and Mr Rowley started living apart.
[9] On 25 August 2010, Ms Qamus and Mr Rowley obtained a judgment of divorce nisi from the Massachusetts Court. The divorce judgment incorporated a separation agreement (separation agreement) of the same date. It recorded agreed understandings between Ms Qamus and Mr Rowley on child support, costs of college tuition and medical insurance, and custody and access arrangements. Under those arrangements, Ms Qamus would have physical custody of Victor but Mr Rowley would have regular access and the parents would share the costs of Victor’s upkeep.
[10] On 24 December 2010, the divorce became final.
[11] On 2 October 2011, Ms Qamus had a daughter, Lauren, by Ken Richards.
Mr Richards is a citizen of the United States and is also resident in Massachusetts.
[12] In 2014 and 2015, both Ms Qamus and Mr Rowley made applications to the Massachusetts Court to vary the arrangements in the separation agreement. The Massachusetts Court made orders responding to Ms Qamus’s application seeking a greater financial contribution by Mr Rowley to Victor’s upkeep and Mr Rowley’s application for more certain parenting time with Victor.
[13] On 30 June 2015, Ms Qamus applied to the Massachusetts Court to vary the separation agreement to allow her to take Victor to New Zealand permanently. The reasons given in her application were that she had been accepted into a graduate programme in New Zealand, that she was finding it difficult to raise her children with no family support, and that a return to Christchurch would allow her and the children to access support from her mother and extended family.
[14] On 15 September 2015, the Massachusetts Court denied Mr Rowley’s motion, filed in response on 9 September 2015, for a temporary transfer of custody of Victor to Mr Rowley.
[15] On 13 October 2015, the Massachusetts Court made an order permitting
Ms Qamus to travel to New Zealand with Victor for two weeks between October and
December 2015, provided she posted a bond for $20,000 conditional upon their return
by 15 December 2015. Ms Qamus was able to post the required bond and in
November 2015 took her children on their first visit to New Zealand.
[16] On 25 March and 19 May 2016, the Massachusetts Court held substantive hearings of Ms Qamus’s removal application. Both Ms Qamus and Mr Rowley gave evidence.
[17] On 20 May 2016, Ms Qamus filed a motion with the Massachusetts Court seeking an order permitting her to take the children on vacation to Atlanta, Australia and London. This was opposed by Mr Rowley.
[18] Ms Qamus’s written response to Mr Rowley’s opposition included the statement “I AM NOT TRAVELLING TO NEW ZEALAND this summer ”.
[19] On 18 June 2016, however, Ms Qamus purchased tickets for herself and the children to travel to New Zealand. At the hearing of this appeal, Ms Qamus told me this was because she was confident that her application would have been granted.
[20] On 21 June 2016, the Massachusetts Court heard Ms Qamus’s motion to take the children to Atlanta, Australia and London and Mr Rowley’s opposition.
Ms Qamus did not attend the hearing as she and the children had already left for Atlanta. In the event, the Massachusetts Court made no orders on this application because it was about to issue its decision on Ms Qamus’s application to remove Victor to New Zealand.
[21] On 30 June 2006, Judge Phelan of the Massachusetts Court issued his decision, which:
(a) Denied Ms Qamus’s request to remove Victor to New Zealand;
(b) Denied Mr Rowley’s request for sole physical and legal custody of
Victor;
(c) Ruled that Ms Qamus and Mr Rowley should share legal custody of Victor but that Ms Qamus should continue to have primary physical custody of Victor; and
(d) Adjusted the parenting times for Mr Rowley.
[22] On 7 July 2016, Judge Phelan’s decision was emailed to Ms Qamus in Atlanta.
[23] On 10 July 2016, Ms Qamus and her children departed the United States for
New Zealand, arriving in Christchurch on 12 July 2016.
[24] On 22 July 2016, Ms Qamus filed a motion with the Massachusetts Court for post-judgment relief to amend the decision denying the application to remove Victor to New Zealand.
[25] On 15 August 2016, Judge Phelan issued emergency orders granting
Mr Rowley temporary sole legal and physical custody over Victor, ordering
Ms Qamus to return Victor to Mr Rowley in Massachusetts, and authorising
Mr Rowley to retrieve Victor from New Zealand if Ms Qamus had not returned Victor by 26 August 2016.
[26] By September 2016, Ms Qamus and her children had moved to Auckland where they are living with a man to whom Ms Qamus is now engaged to be married. Ms Qamus is enrolled as a law student at the University of Auckland.
[27] Behind that outline of facts, there is the more complex history of the relationship between Ms Qamus and Mr Rowley which emerges from the additional material Ms Qamus filed in support of her appeal and from the judgment of Judge Phelan of 30 June 2016. I refer to aspects of that material in this judgment as appropriate.
The relevant provisions of the Act and the Hague Convention
[28] The purpose of the Act, as set out in s 3:
3 Purpose of this Act
(1) The purpose of this Act is to—
(a) promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care; and
(b) recognise certain rights of children. (2) To that end, this Act—
…
(f) implements in New Zealand law the Hague Convention on the
Civil Aspects of International Child Abduction:
[29] The Hague Convention is contained in Schedule 1 of the Act. The objects of the Convention are set out in Article 1. The commitment of Contracting States to the Convention, is set out in Article 2:
Article 1
The objects of the present Convention 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.
Article 2
Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.
[30] It is clear from these provisions that the policy of the Convention, and those sections of the Act that implement the Convention, is to secure the prompt return of children who have been wrongfully removed from another Contracting State, and to ensure in each Contracting State respect for rights of access and custody is determined under the law of other Contracting States.
[31] The United States is a Contracting State to the Hague Convention, as is
New Zealand.
[32] Chapter III of the Convention contains specific provisions for the return of children. Articles 12 and 13 provide:
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—
a the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.
[33] As stated by Tipping J for the majority in the Supreme Court’s decision in
Secretary for Justice v H J:1
[35] … The first paragraph of art 12 of the Convention states that where a child has been wrongfully removed or retained, and, at the date of the commencement of the proceedings for the return of the child, less than one year has elapsed from the date of the wrongful removal, the judicial authority of the country has now is shall order the child forthwith. The purpose of the return is to enable the Courts of the country’s habitual residence rather than the Courts of the country to which the child has been wrongfully removed to decide matters of access and custody.
(Emphasis added)
[34] As also noted by Tipping J in Secretary for Justice v H J, sub-pt 4 of pt 2 of the Act is designed to give effect to the general framework of the Convention.2 The most relevant provisions of the Act for present purposes are ss 105 and 106. They provide:
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.
(2) Subject to section 106, a court must make an order that the child in respect of whom the application is made be returned promptly to the person or country specified in the order if—
(a) an application under subsection (1) is made to the court; and
(b) the court is satisfied that the grounds of the application are made out.
(3) A court hearing an application made under subsection (1) in relation to the removal of a child from a Contracting State to New Zealand may request the
1 Secretary for Justice v H J [2006] NZSC 97, [2007] 2 NZLR 289.
2 At [42].
applicant to obtain an order from a court of that State, or a decision of a competent authority of that State, declaring that the removal was wrongful within the meaning of Article 3 of the Convention as it applies in that State,
and may adjourn the proceedings for that purpose.
(4) A court may dismiss an application made to it under subsection (1) in respect of a child or adjourn the proceedings if the court—
(a) is not satisfied that the child is in New Zealand; or
(b) is satisfied that the child has been taken out of New Zealand to another country.
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 105(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, in addition to taking them into account in accordance with section
6(2)(b), also 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 refugees or protected persons:
(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.
[35] It is also relevant to note Article 14 of the Hague Convention which provides:
Article 14
In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
[36] This Article is given effect in New Zealand law by s 115 of the Act:
115 Evidentiary provisions
(1) In determining whether, under the law of a Contracting State, an applicant has rights of custody in respect of a child, a court may, despite anything in sections 37 to 41 of the Evidence Act 1908, take direct notice of—
(a) the law of that Contracting State:
(b) any decision or determination of a judicial or administrative authority of that Contracting State, whether or not formally recognised in that State:
(c) any agreement having legal effect under the law of that
Contracting State.
(2) For the purposes of subsection (1), a decision or determination of a judicial or administrative authority outside New Zealand may be proved by a duly authenticated copy of the decision or determination; and any document purporting to be such a copy must be treated as a true copy unless the contrary is shown.
(3) For the purposes of subsection (2), a copy is duly authenticated if it purports to bear the seal, or purports to be signed by a Judge or officer, of the authority in question.
[37] These provisions mean New Zealand courts can have regard to judicial decisions of another Contracting State without going through the formal procedures for the recognition of foreign judgments when making decisions on whether to order the return under a child wrongfully removed from that Contracting State.
[38] It is clear from Articles 12 and 13 of the Hague Convention and from ss 105 and 106 of the Act, and as confirmed by the Supreme Court in Secretary for Justice v H J,3 that if a child is present in New Zealand in the circumstances provided for in s 105(1), a New Zealand court is required to order the child’s return unless the person opposing the order can establish to the satisfaction of the court that one of the grounds in section 106 has been made out, provided the court does not exercise its residual discretion to order the return regardless.
[39] It was accepted by the parties at the Family Court hearing and at the hearing of the appeal that Mr Rowley had made out the grounds required for an order under section 105, namely:
(a) Victor is present in New Zealand;
(b)Victor was removed from the United States in breach of Mr Rowley’s rights of custody in respect of Victor;
(c) At the time of Victor’s removal, Mr Rowley had been exercising those rights under the separation agreement, as varied by orders of the Massachusetts Court; and
(d)Victor had been habitually resident in the United States immediately before his removal.
3 Secretary for Justice v H J, above n 1.
[40] In addition, the application for Victor’s return was made within a year of Victor’s removal from the United States, so the circumstances provided for in s 106(1)(a) do not apply. Moreover, Ms Qamus brought Victor to New Zealand within days of a decision by the Massachusetts Court expressly denying her application to bring Victor to New Zealand.
[41] Ms Qamus opposed the order sought by Mr Rowley on the grounds that:
(a) Return of Victor to the United States would create a grave risk that:
(i) Victor would be exposed to psychological harm;
(ii) Victor would otherwise be placed in an intolerable situation.
(b) Victor objects to being returned.
[42] It was not argued before the Family Court or during the appeal hearing that Victor was at any physical risk should he be returned. Nor was it argued before the Family Court or at the appeal hearing that Victor would be at grave risk of psychological harm if returned to the United States with his mother and sister. A key factor before both the Family Court and this Court was Ms Qamus’s insistence that she would not and, in her submission, could not go back to the United States.
Family Court decision
[43] In reaching his decision, Judge Maude for the most part accepted the analysis of the Court-appointed clinical psychologist, Ms Simone Powell, who had been asked to report on the basis of Victor’s objections to returning to the United States and how Victor might respond if the Court made an order for his return. In particular, Judge Maude said:
[85] I accept that if Victor is to return to the United States without his mother and sister he will suffer psychological and emotional harm.
[44] However, Judge Maude did not accept the psychologist’s final conclusion that a return to the United States involving separation from his mother would give rise to a greater likelihood of grave risk of psychological harm. He held:
[56] Ms Powell’s expertise does not extend to the making of a determination as to whether the psychological conclusions reached by her meet the legal test imposed by the [Hague] Convention’s articles and the Care of Children Act as to grave risk of psychological harm or intolerable situation. Both expressions have both commonplace usage and also usage in accordance with the legislation as interpreted by the Courts over the years.
[57] A finding of grave risk or intolerable situation is a judicial task informed by the evidence including in this case, the evidence of Ms Powell, psychologist.
[45] Rather, the Judge reached his own assessment on that matter and held that Victor would not be at grave risk of psychological harm if returned to the United States, even if he were to return without his mother, Ms Qamus.
[46] The Judge also held that Victor would not be placed in an intolerable situation if returned to the United States even if he were to return without his sister, Lauren.
[47] Against the possibility he was wrong in concluding that Victor would not be at grave risk of psychological harm if returned to the United States without his mother, Judge Maude also considered the likelihood that Ms Qamus would not go back to the United States — as she had forcefully asserted she would not — if Victor’s return was ordered. The Judge concluded, after considering Ms Qamus’s actions leading up to the hearing, that on the balance of probabilities, he believed she would go back to the United States.
[48] The Judge accepted that Victor objected to being returned to the United States. However, he decided Victor’s views were, as he put it, not of sufficient substance to divert the Court from exercising its obligations to return Victor to the United States pursuant to s 105 of the Act.
Appeal
[49] On 19 April 2017, Ms Qamus lodged a notice of appeal, pursuant to s 143 of the Act. She prepared it herself. Although the grounds are stated broadly, the key contentions are clear enough. They are that Judge Maude made the following errors:
(a) The Judge was wrong to find that Ms Qamus would return to the United States if Victor were required to return there and that error coloured much of his judgment;
(b)The Judge was wrong to find Victor would not be at grave risk of psychological harm if returned to the United States without his mother and should have accepted the finding of the psychologist on that matter;
(c) The Judge was wrong not to have given greater weight to Victor’s objection to returning to the United States and should not have exercised his discretion to return Victor in the face of that objection.
[50] In support of her appeal, Ms Qamus sought and was granted leave to file further evidence on the circumstances of her departure from the United States, including the circumstances that led to Judge Phelan’s decision of 30 June 2016 denying Ms Qamus’s application to remove Victor to New Zealand. The thrust of the further affidavit, dated 26 June 2017, which annexed copies of decisions of the Massachusetts Court on various actions brought by Ms Qamus and Mr Rowley over the arrangements for Victor, was that she and her children had been living in an intolerable situation in the United States. This explained why she would not return to the United States. She also asserted that the loss of her residence status meant she could not return to the United States.
[51] In response, further affidavit evidence was filed on behalf of Mr Rowley regarding the immigration and financial constraints bearing on Ms Qamus’s ability to return to the United States.
[52] On appeal, Ms Qamus did not maintain the claim that Victor would be put in an intolerable position if required to return to the United States without his sister, Lauren.
[53] Lauren’s situation became a point of contention in the pre-hearing phase of the appeal. Ms Qamus initially resisted interrogatories filed by Mr Rowley asking about Lauren’s situation. When she did reply, Ms Qamus denied that Lauren was subject to any order of a United States court, although she admitted that Lauren’s father had also made an application for Lauren’s return to the United States.
[54] At the hearing of the appeal, Dr Allan Cooke, counsel appointed to act for Victor, produced a copy of an order made by the Probate and Family Court of Massachusetts on 1 February 2017, granting sole custody of Lauren to her father, Ken Richards. Ms Qamus’s explanation for her denial in answer to the interrogatories was that she did not regard the order as valid.
[55] Dr Cooke and Ms Lisa Soljan, counsel for Mr Rowley,4 informed the Court that the Family Court had yet to hear the application for Lauren’s return. As Dr Cooke and Ms Soljan agreed, it would have been preferable for the two applications to have been considered together. However, that was not practicable because of the very different stages reached in the two applications.
Approach on appeal
[56] It was common ground between counsel for Mr Rowley and Ms Soljan, and accepted by Ms Qamus, that, because an appeal under s 143 of the Act is a general appeal, the principles set out by the Supreme Court in Austin, Nichols & Co Inc v Sticting Lodestar apply to the extent the Family Court judgment involved findings of fact and the evaluation of factual matters.5 Accordingly, this court is free to reach its own view on such matters, based on the evidence before the Family Court and on the
additional evidence produced on appeal.
4 Ms Soljan was appointed by the New Zealand Central Authority under the Hague Convention.
5 Austin, Nichols & Co Inc v Sticting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[57] As submitted by Ms Soljan and Dr Cooke, to the extent Judge Maude exercised his discretion, this Court should, as set out in May v May, interfere only if satisfied the Judge acted on a wrong principle, took into account irrelevant matters, failed to have regard to relevant matters or was plainly wrong.6
[58] As submitted by Ms Soljan, the onus for satisfying this Court that it should differ from the decision of the Family Court lies with the appellant, Ms Qamus. Given that Ms Qamus represented herself, I do not place emphasis on this requirement.
[59] The key questions raised in Ms Qamus’s appeal are whether Judge Maude was wrong:
(a) To find that Victor would not be at grave risk of psychological harm if ordered to return to the United States without his mother or sister;
(b)To find that Ms Qamus would return to the United States if the Judge ordered Victor’s return — thereby removing the risk of psychological harm to Victor;
(c) To hold that Victor’s objection to returning to the United States was outweighed by the considerations identified by the Judge when exercising his discretion to order Victor’s return.
Consideration of key questions on appeal
Was Judge Maude wrong in holding that Victor would not be at grave risk of psychological harm if ordered to return to the United States without his mother?
[60] In considering this question, Judge Maude had regard to Dr Cooke’s report on his meeting with Victor, the Judge’s own meeting with Victor and the report of the
Court-appointed psychologist, Ms Powell.
6 May v May (1982) 1 NZFLR 165 (CA).
[61] It is apparent from the judgment there was considerable congruence in the views expressed by Victor to Dr Cooke and to Judge Maude:
(a) Victor wanted to stay in New Zealand where there was more space and he could do more things;
(b)Victor regarded his father as “fun” and was prepared to spend time with him and his wider American family but not for an extended period; and
(c) Victor gave low ratings to the idea of living in the United States with his father and high ratings to the idea of staying in New Zealand with his mother and his sister, Lauren.
[62] Judge Maude analysed Ms Powell’s report at some length and took note of her assessments, among others noted by the Judge, that:
(a) Victor clearly identified his mother as his main (and preferred) port of call at times of vulnerability and need, which was consistent with her having been his primary caregiver for most of his recallable life;
(b)Victor identified his father as having emotional significance within his psychological world but having less emotional primacy relative to his mother;
(c) There was no evidence of alienation from his father and Victor expressed a desire to have some contact with him;
(d)Victor’s objection to returning to the United States was driven by a desire to remain with his mother (and sister) whom he identified as his closest and most important attachment figures within his life; and
(e) Victor was likely to be “highly distraught and grief stricken” if made to return and be separated from his mother and could experience “relational trauma, otherwise known as ‘attachment injury’”.
[63] The Judge did not disagree with any of Ms Powell’s analysis. The only point of difference was that he did not accept the conclusion in the final paragraph of
Ms Powell’s report that a return to the United States involving separation from Victor’s mother would give rise to a greater likelihood of grave risk of psychological harm. He held that the psychologist’s expertise did not extend to the making of a determination whether the psychological conclusions she had reached met the legal test imposed by the Hague Convention and the Act. Rather, he reached his own conclusion.
[64] In her notice of appeal, and as her counsel had argued before the Family Court, Ms Qamus submitted that the Judge should have accepted Ms Powell’s evidence, which was uncontested, as the best evidence available on the issue of grave risk.
[65] I do not accept those submissions.
[66] It is clear from s 106(1) of the Act that it is for the Court to be satisfied that any of the grounds described in paragraphs (a)-(e) have been made out. Judge Maude was correct in holding that it is for the Court to make the legal determination with respect to the gravity of risk of psychological harm and that he was not required to accept as determinative the evidence of the psychologist, particularly evidence that had not been subject to cross examination. As stated by Priestly J in KS v LS:7
The opinion of a psychologist, although undoubtedly helpful, cannot be conclusive.
[67] I also consider Judge Maude was correct to approach the assessment of the gravity of risk, as he put it, “through the filter of the high standard expected to be reached flowing from the objects of the Convention and the authorities’ interpretation of them”. Earlier in his decision, Judge Maude had referred to well-known authorities on the issue of grave risk, notably the decision of the English Court of Appeal in C v C8 and the decision of Elias J in Clarke v Carson,9 where the Courts emphasised that some stress is inevitable in situations when children are required to return after having
been wrongfully removed, and held that the standard set by the Convention and the
7 KS v LS [2003] 3 NZLR 837 (HC) at [93]. Priestley J gave the judgment of the High Court on behalf of himself and Frater J.
8 C v C [1989] 1 WLR 654 (CA).
9 Clark v Carson [1996] 1 NZLR 349 (HC).
Act is high and stringently tested. These are matters on which the Court must reach its own decision.
[68] The question, then, is whether, having approached the issue of “grave risk” in accordance with established authority, Judge Maude reached the right conclusion when he said:
[88] Against the background of asking Victor to return to his lifetime home until July 2016, the care of his father, partner and other family nearby, likely return to a school known to him and the expectation of holiday contact with his mother, I am not satisfied that for this well adjusted, mature and securely attached child the threshold of grave risk of psychological harm or intolerable situation is met when seen through the filter of the high standard expected to be reached flowing from the objects of the Convention and the authorities’ interpretation of them.
[69] In her oral submissions, Ms Qamus said the Judge had made mistaken assumptions in that paragraph about the circumstances that would apply if Victor were to return to the United States:
(a) Victor would not be returning to his “lifetime home”. That home had been with Ms Qamus and she was not going back to the United States. Moreover, some months before she left the United States, Ms Qamus had given up the apartment that she and her children used to occupy in Massachusetts. If Victor went back to the United States he would be going to his father’s home where Victor previously had only short visits.
(b)Victor would not be returning to a school known to him. He had never attended the [School] which Mr Rowley, in his affidavit of
18 December 2016, had identified as the school in which Victor would be enrolled.
[70] Dr Cooke also questioned the appropriateness of the observation the Judge made at paragraph [89] of the Family Court decision; that Victor’s situation was not unlike that of a child of a similar age sent to boarding school when out of contact with parents at term time.
[71] I accept there is not an easy parallel between the situation of Victor being required to return to the United States, perhaps permanently, and that of a child at boarding school. I do not consider, however, that observation was an essential part of the Judge’s reasoning.
[72] The points Ms Qamus made about the home and school are valid but I do not consider they are significant in the context of Victor’s recent history. Victor has changed country, home and school in the last two years. Before coming to New Zealand where he moved from Christchurch to Auckland in the space of approximately 3 months, he was, as Ms Qamus informed the Court in her submissions, living in temporary accommodation in Massachusetts and then in New Jersey when Ms Qamus moved to stay with her brother. So, while I accept Victor would not want to leave the new home he is enjoying on the outskirts of Auckland, it would not be the same as moving from a place and an environment where he has long-established roots.
[73] Victor is an American boy who would be going back to the United States after a year or so away in New Zealand. While the case law establishes that return is to a country rather than a place or a person,10 it must be assumed that, if returned to the United States, Victor would be going, at least in the first instance, into the custody of his father pursuant to the emergency orders issued by the Massachusetts Court on 15
August 2016.
[74] Victor would also be going back to a person, a family and an environment he knows, even if he has not stayed there for extended periods. As far as those external factors are concerned, it is difficult to accept there would be any serious risk of long term psychological harm from a return to the United States.
[75] The only real issue is the harm that might arise to Victor from leaving his mother who, as noted above, Ms Powell assesses to be “… his main (and preferred) port of call at times of vulnerability and need, which was consistent with her having
been his primary caregiver for most of his recallable life”.
10 See A v Central Authority for New Zealand [1996] 2 NZLR 517 (CA); Secretary for Justice v HJ, above n 3.
[76] Like Judge Maude, I accept Ms Powell’s assessment that being separated from his mother would cause Victor considerable distress and grief. But the question then is: how long is the period of separation that the Court need take into account? Here, I am not referring to the issue Judge Maude decided he should address — namely whether Ms Qamus would in fact go back to the United States if Victor was ordered to return, despite her strong assertions that she would not. As I shall explain, I do not consider the Court needs to decide that question. Rather, the issue is the risk of harm to Victor in the context of the decisions the New Zealand courts must make on an application under s 105 of the Act.
[77] Ms Powell in her assessment, like Ms Qamus in her submissions, assumed that the decision of the New Zealand Courts on Mr Rowley’s application is a decision about Victor’s ultimate place of residence and long term future or, as Ms Powell put it, a choice between one parent or another:
33 The current predicament for Victor essentially involves being separated from one or other of his parent. [sic] Whilst far from ideal, the reality for the Court is determining which option poses the most threat to his psychological health – and whether or not this reaches the threshold of being an ‘intolerable’ situation for him.
[78] With due respect to Ms Powell, that is not the purpose of decisions on Hague Convention applications, as the authorities make clear. In Clark v Carlson,11 Elias J stated:
It is clear that the function of a New Zealand Court hearing an application under the 1991 Act [now the Care of Children Act 2004] is circumscribed. It is not its function to determine the underlying merits of whether the child is better off in one country or another. … Rather, the Act is designed to achieve international cooperation in preventing the wrongful removal of children and proceeds on the basis that, except in the exceptional circumstances provided for by s 13 [now s 106] the appropriate place to determine questions of custody, access and residence is the country from which the child was wrongfully removed.
[79] As noted above, Tipping J made much the same point in Secretary for Justice v H J.12
11 Clark v Carlson, above n 9, at 665.
12 See [33] above.
[80] It follows that the question for New Zealand courts is the risk of psychological harm to Victor in ordering his return to the United States, pending a determination by the courts of that jurisdiction — in this case, the Massachusetts Court — on his long term future. Posed that way, the relevant period of separation is relatively confined.
[81] The emergency orders issued by the Massachusetts Court on 15 August 2016 were in their own terms temporary. If Victor is returned, it must be assumed the Massachusetts Court will be asked to make further orders regarding Victor’s long term future. As is apparent from that Court’s judgment of 30 June 2016, the key consideration in any such orders will be Victor’s best interests, which must include consideration of any risks to Victor, including risk of psychological harm.
[82] When considered in that light, it is not evident to me that the risk of psychological harm to Victor caused by a return to the United States would be of the gravity contended by Ms Qamus or by Ms Powell, even if Victor returned without his mother.
[83] No doubt Victor would experience the inevitable stress of removal, which may be substantial and may have psychological effects as referred to by Elias J in Clarke v Carson.13 But, as is clear from that decision, stress of that kind is not of itself sufficient to meet the stringent standard in the Convention and the Act. If Victor knew, as he should know, there would be further decisions by the Massachusetts Court about his long term future, that should mitigate to a considerable extent the stress that would follow on order for his return.
[84] Accordingly, I agree with Judge Maude’s assessment that Victor would not be at grave risk of psychological harm if ordered to return to the United States in the absence of his mother, even if I have reached that conclusion by a slightly different
route.
13 Clarke v Carson, above n 9.
Was Judge Maude wrong to find that Ms Qamus would return to the United States if the Judge ordered Victor’s return – thereby removing the risk of psychological harm to Victor?
[85] There is a question, in terms of Judge Maude’s judgment itself, whether the findings on this point are part of the rationale for the decision or, as submitted by
Ms Soljan, are really obiter dicta, given that Judge Maude had already found there would not be grave risk of psychological harm to Victor if he were ordered to return, even if his mother did not also return.
[86] There are two reasons why I do not consider it necessary to answer this question or the wider question of whether Ms Qamus would indeed go to the United Sates if Victor were ordered to return.
[87] First, I am satisfied that Victor would not be at grave risk of psychological harm if ordered to return. So there is no need to consider whether Ms Qamus would return and thus avoid the posited grave risk of psychological harm.
[88] Secondly, whether or not Ms Qamus returns is an issue only she can decide.
[89] Having said that, I acknowledge the focus of Ms Qamus’s appeal and submissions were on the question of whether she could return. That issue is also relevant to the exercise of the Court’s discretion if circumstances require. For those reasons, I make the following observations.
[90] Ms Qamus argued forcefully that a return to the United States was out of the question for her. Put briefly, her principal contentions were:
(a) She has no job and no realistic prospect of getting a job in the United
States, in particular in Massachusetts;
(b)She has no home and, because she has no job, no prospect of acquiring a home in Massachusetts;
(c) There is no social security and no other support systems or services that she could access in Massachusetts;
(d)She had suffered clinical depression after Victor’s birth and has been receiving continuing treatment; and
(e) She has lost her Permanent Resident status in the United States so could not return even if she wanted to.
[91] This Court is not well-placed to assess most of these issues. They are about circumstances in another jurisdiction in respect of which this Court has limited visibility and no authority. Most of the evidence on these issues comes from
Ms Qamus’s largely untested affidavits and submissions, although there are exhibits to her affidavit of 2 December 2016 that attest to Ms Qamus having had depression following Victor’s birth.
[92] There is also information going the other way before the Court — namely the assertions, also untested, in Mr Rowley’s affidavit of 18 December 2016 that:
In September of 2015 Ms Qamus presented herself in court as a mother at the end of her wits; unemployed and sleeping on a friends’ [sic] couch. She was not displaced by fire, she was not evicted, she was not terminated from employment, she was not incapable of providing proper housing for herself and her children. She chose to become homeless so that she could appear in court to force the judge into approving relocation to New Zealand.
[93] It is not possible to resolve the conflict between these positions on the information before this Court.
[94] What is known to the Court is that, apart from the immigration issues, the matters identified by Ms Qamus as explaining why she could not go back to the United States were also raised in her motion to remove Victor to New Zealand and were considered by Judge Phelan when he issued his decision of 30 June 2016.
[95] Consistently with Article 14 of the Convention and s 115 of the Act, it is in order for me to take notice of that decision.
[96] Judge Phelan’s decision ran to 33 pages. It was delivered after two days of hearings during which the Judge had the opportunity to hear evidence from both
Ms Qamus and Mr Rowley and to assess their veracity. In his judgment, the Judge
traversed and made various observations and findings about Ms Qamus and
Mr Rowley and the relationship between them. Among other things, he noted
Ms Qamus’s proposed arrangements for living in New Zealand, Mr Rowley’s work history, Ms Qamus’s employment history including the salaries earned at various jobs, the fact she had collected “unemployment” on at least two occasions and, at that time of the hearing, was unemployed. The Judge also canvassed Victor’s relationships with Mr Rowley, Mr Rowley’s mother, sister, and Mr Rowley’s current spouse and her family.
[97] The Judge considered Ms Qamus’s relationship with her mother and her New Zealand family. He expressed some doubt about Ms Qamus’s claims that she would be able to rely on the support of her family if she returned to New Zealand and about her ability to provide for Victor, given her past estrangement from her New Zealand family.
[98] The Judge also made findings about where the best interests of Victor lay and about the nature of the relationship between Ms Qamus and Mr Rowley, as demonstrated at the hearing. He commented on how that relationship might play out if Victor were removed to New Zealand. Importantly, Judge Phelan was clearly of the view that it was in Victor’s best interests still to have Mr Rowley in his life and was concerned that would be lost if Ms Qamus took Victor to New Zealand because of the obviously poor relationship between Ms Qamus and Mr Rowley:
Although mother, based on her testimony alone, established a real advantage for her move to her home country of New Zealand (to continue her education, obtain a graduate degree, lower costs of living) and that the potential economic benefits to her would flow through to the child, she did not establish by a preponderance that it would be in the best interests of the child to permit the relocation. It seems more probable than not that if mother were permitted to remove the child to New Zealand, she would be unenthusiastic about facilitating father’s continued relationship with the child given her obviously low regard for father’s role as a parent.
…
Mother did not dispute, nor did the evidence disprove, that it is the child’s best interests to continue to have father in the child’s life.
…
Mother, while articulate and nuanced in much of her testimony, displayed a troubling anger, directed at father, which detracted from her credibility especially on the issue of fostering father’s future relationship with the child in New Zealand.
[99] After considering relevant case law of Massachusetts and undertaking a further assessment of where the best interests of the child lay, Judge Phelan found that the then-current parenting plan — under which Ms Qamus had primary physical custody of Victor but Mr Rowley had agreed parenting time, was satisfactory and reasonably capable of preservation. The Judge concluded:
In addition to all of the reasons stated above, and in order to maintain a parenting plan that is least disruptive while preserving the child’s stability, a stability that the child currently enjoys through the de facto arrangement, and the evolution of father’s attentiveness and participation, it is in the best interests of the child at this time that the child continue the benefit of the current custody arrangement but with increased time for father.
[100] It is clear from Ms Qamus’s submissions and her motion of 22 July 2016 for post-hearing relief to amend the judgment, that she vehemently disagrees with Judge Phelan’s decision, both as to outcome and to feasibility of implementation. Moreover, as Ms Qamus said in her written submissions, her decision to come to New Zealand is “absolute”.
[101] There is no need for this Court to express a view on the correctness of Judge Phelan’s analysis and conclusions. However, this Court must take notice of the fact that a competent court in the jurisdiction in which Ms Qamus and her family had lived for the past 9 years has reached the conclusion that the then-existing arrangements for custody and parenting time were “satisfactory and reasonably capable of preservation”. That decision was made after two days of hearing direct evidence on the very matters that Ms Qamus asserts make it impossible for her to live in the United States.
[102] In these circumstances, it would be inappropriate for this Court, on the basis of untested evidence, and in the absence of fresh and compelling evidence, to base any aspect of its decision on the proposition that it is not possible for Ms Qamus to return to and live in the United States.
[103] At the hearing before me, Ms Qamus made clear her concern that Judge Phelan may not have had important relevant information before him when he made his decision because of a misunderstanding on her part about the requirements regarding the filing of exhibits. That information, however, was primarily about Ms Qamus’s proposed arrangements in New Zealand — her intended course of study at Canterbury University and the support arrangements with her mother. They do not relate to the question of whether Ms Qamus could continue to live in the United States.
[104] Ms Qamus’s immigration status was not before Judge Phelan. I accept that with the lapsing and then loss of her “Green Card” Ms Qamus no longer has an automatic right of re-entry to and permanent residence in the United States. But I do not accept, as Ms Qamus asserted to the Court, that there is no other basis on which she can re-enter the United States, whether temporarily, at least initially, or on a more permanent basis.
[105] The material from the United States Central Authority annexed to the affidavit of Lauren Michelle Gamble of 18 August 2017, filed in support of Mr Rowley’s application, establishes there are procedures by which the United States Central Authority can assist with applications for non-immigrant visas for people wishing to enter the United States in connection with Hague Convention cases. While the United States Central Authority does not itself issue visas, it would be surprising if, with the assistance offered by that Authority, Ms Qamus was not granted a temporary visa at least for the purposes of participating in hearings in Massachusetts on the long term custody arrangements for Victor. Also attached to Ms Gamble’s affidavit is material from the Ministry of Social Development that explains the financial assistance that may be available to Ms Qamus if she goes to Massachusetts to resolve Victor’s long term custody arrangements.
[106] It appears, therefore, the situation is not as bleak or as clear-cut as Ms Qamus would have had the Court believe.
Was Judge Maude wrong in holding that Victor’s objection to returning to the United States was outweighed by the considerations identified by the Judge when exercising his discretion to order Victor’s return?
[107] The question as stated is taken from Judge Maude’s judgment:
[157] The clear view I have is that Victor’s views must be listened to by his parents, they adjusting their proposals as to how they will parent in the future, father taking note of Victor’s sensitivities to return and mother considering return or meaningful holiday contact in New Zealand or the United State, B UT that his views do not amount to views of sufficient substance to divert the Court from exercising its obligations to return Victor pursuant to s 105 of the Act.
[108] As Dr Cooke observed, this might seem to conflate the issues of whether the grounds of child objection have been made out and, if so, whether the Court should still exercise its discretion under s 106 to return the child because of the policy of the Hague Convention and the Act.
[109] However, it is apparent from the judgment that Judge Maude went through the four stage test he identified at paragraph [40] and again at paragraph [137] which, as the Judge acknowledged, is the process endorsed by the Court of Appeal in White v Northumberland:14
(a) Does the child object to return?
(b)Has the child attained an age and degree of maturity at which it is appropriate to give weight to the child’s views?
(c) What weight should be given to the child’s views?
(d) How should the residual discretion be exercised?
[110] The Judge accepted that Victor objected to return. But the objection was not to a return to the United States itself. Rather, as Judge Maude found at paragraph
[144] the objection was to returning to the United States without his mother.
14 White v Northumberland [2006] NZFLR 1105 (CA) at [44].
[111] The Judge also accepted that Victor was of a sufficient age and maturity that he should give weight to the objection. When analysing Ms Powell’s report, Judge Maude stated:
[75] Ms Powell formed the view, consistent with Dr Cook’s [sic] interview material and my own meeting with Victor on the day of the hearing, that:
What was evident, was that Victor presented with more social, emotional and cognitive maturity than many similar aged children. On this basis the writer considered that Victor had sufficient maturity and understanding to recognise the implications of his objection.
I observe I do not rely on mine or Dr Cook’s [sic] observations but prefer to rely from a clinical perspective on the observations of Ms Powell, the expert in such assessment.
[112] At paragraph [152], Judge Maude asked, “What weight should I attach to
Victor’s objection?” He then framed Victor’s objection in the following terms:
[153] Victor’s objection to return to the United States without his mother and sibling to an unknown parenting situation with his father and lack of knowledge as to contact detail to follow as between himself, his mother and sister is real and understandable.
[113] The Judge identified matters relating to these factors that Victor does not understand:
(a) His mother may return to the United States;
(b)His father is likely to be able to parent successfully with the assistance of his current wife;
(c) His mother, if she stays in New Zealand, will seek and maintain regular contact with Victor;
(d)He will grow to accept his new situation especially if he is no longer hearing criticisms of his father; and
(e) The temporary status of the orders giving his father sole custody.
[114] The Judge did not say explicitly how much weight he attached to Victor’s objection in the light of these considerations before making the statement in paragraph [157]. Ms Soljan submitted he gave it no weight so the defence of child objection was not established. My own interpretation is that he gave the objection some weight but not sufficient weight to establish the defence. Either way, the Judge did not consider it necessary to give specific consideration to the exercise of the residual discretion that applies to all instances when one of the exceptions provided for in s 106 has been established.
[115] I cannot find any serious fault with this approach. I accept:
(a) Victor has a valid objection to returning to the United States but that objection is confined to returning without his mother;
(b)Victor is of sufficient maturity to take the objection seriously — which was why I did not see it as necessary to meet Victor myself, especially at the risk of unsettling him further; and
(c) Because Victor’s objection is both confined to return without his mother and is not informed by the wider realities that would be likely to apply if he were returned to the United States, and because Victor has lived all of his life in the United States but for the past year, it is not appropriate to give that objection such weight as to displace the presumption of return in s 105 of the Act.
[116] However, if I am wrong in that assessment and Victor’s objections should be given sufficient weight to establish the child objection “defence”, I also consider there are strong policy reasons for exercising the residual discretion to order Victor’s return in any event.
[117] First, this is almost a textbook example of a situation the Hague Convention was designed to address. Ms Qamus has taken a child (in fact two children) who had spent almost his whole life in the United States until brought to New Zealand and who had had regular, if sometimes difficult, access to both parents throughout his life. The
Massachusetts Court had approved the custody and access arrangements made at the time of divorce and had continued to supervise them through the various adjustments sought by both parents. Most importantly, the Massachusetts Court had issued a judgment addressing the very question of whether it was in the best interests of the child for the child to be taken to New Zealand and away from his father. Yet, Ms Qamus decided she could still bring the child to New Zealand and thereby circumvent the decision of the Massachusetts Court. If return were not to happen on this occasion, it would seriously erode the purpose of the Convention and raise serious questions about New Zealand’s commitment to its implementation.
[118] As Fisher J said in S v S:15
Underlying the presumption for return is the Convention premise that the interests of children are of paramount importance. In giving effect to that premise, it will usually be in the interests of abducted children that they be returned. That is the Convention acting remedially. But it would be easy to overlook its equally important normative role. There is the future of other children to consider. Their interests will be promoted by demonstrating to potential abductors that there is no future in inter-State abductions. A firm attitude to the return of children, in other words discourages those parents who might otherwise be tempted to contemplate unilateral removal. … In New Zealand’s case, a firm implementation of the Convention is an assurance to overseas custodial parents that it is safe to allow their children to come here for access and other temporary purposes.
[119] Secondly, while I respect and admire Ms Qamus’s determination to look after her children and to secure the best possible future for them, she is unlikely to achieve that if she continues, as she herself acknowledged is her inclination, “to take the law into my own hands” when faced with outcomes that not suit her. It would be inappropriate for this court to sanction such an approach. What Victor needs (and indeed what his sister also needs) is a secure long-term arrangement that is in his best interests and takes into account the interests of both sets of parents. As the case
law makes clear, decisions about those arrangements are appropriately made by the
Courts in the country of habitual residence.16
[120] Thirdly, while Dr Cooke was inclined initially to suggest that this might be one of those cases, referred to in A v Central Authority for New Zealand, where the New
Zealand courts cannot be satisfied that the jurisdiction of habitual residence makes paramount the best interests of the child or, if it does, does not have the mechanisms to achieve that, the decision of Judge Phelan of 30 June 2016 makes it clear that is not so.17 It is apparent from that decision, especially the section headed “The Removal Analysis: Real Advantage Test and Best Interests of the Child”, that the governing consideration applied by the Judge was whether the proposed removal to New Zealand was in the best interests of the child.
[121] Fourthly, I have considered whether this might be one of those situations, encountered by Elias J in Clarke v Carson, where returning the child to the jurisdiction of habitual residence would be likely to:18
… entail a shuttle which is relatively empty …[and] will disrupt the family and cause substantial emotional and financial stress quite disproportionate when the likely outcome is considered.
[122] In other words, would sending Victor back simply result in him returning to New Zealand some time later, because his parents will agree, or the Massachusetts Court will decide, that his long term best interests are being with his mother in New Zealand?
[123] I cannot reach that conclusion, especially in the face of Judge Phelan’s decision of 30 June 2016. I note Ms Qamus’s current situation is significantly different from
— and considerably more secure than — the situation on which she based her original application to bring Victor to New Zealand and which Judge Phelan found unconvincing. Whether the Massachusetts Court can be satisfied that this new situation is sufficiently different to warrant a different result is a decision only that Court can make.
[124] For these reasons, even if Victor’s objections to going back to the United States were accorded sufficient weight to establish the “child objection defence” in s 106(1)(d) of the Act, I would have still exercised the residual discretion in s 106
to return Victor consistently with the clear policy of the Hague Convention and sub-pt 4 of pt 2 of the Act.
[125] Accordingly, the appeal is dismissed.
[126] I order that the matter is referred back to the Family Court so that appropriate arrangements can be made for Victor’s return to the United States.
van Bohemen J
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