Qamus v Rowley

[2017] NZHC 1950

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 1950

BETWEEN

QAMUS

Appellant

AND

ROWLEY Respondent

Hearing:	10 August 2017
Appearances:	The appellant in person L F Soljan for the Respondent, on instructions from the New Zealand Central Authority A J Cooke as Lawyer for the Child
Judgment	16 August 2017

JUDGMENT OF PALMER J (Finalised for publication)

This judgment is delivered by me on 16 August 2017at 1.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel/Solicitors:

L Soljan Barrister, Auckland A Cooke, Barrister, Manukau Party:

Ms Qamus

QAMUS v ROWLEY [2017] NZHC 1950 [16 August 2017]

Summary

[1]      Ms Qamus and her 10-year-old son and five-year-old daughter travelled from the United States to New Zealand in July 2016.  On 20 March 2017 the Family Court ordered the son to be returned to the United States, on the application of his father Mr Rowley who lives there.  Ms Qamus’ appeal to the High Court will be heard on

23 August 2017.   She applies to adduce further evidence about her immigration status in the United States.  Mr Rowley applies for an order requiring Ms Qamus to answer questions about proceedings for the return of the daughter to the United States.  I grant both applications and make further timetabling orders.

What has happened, so far

[2]      Ms Qamus married Mr Rowley in Boston in June 2004.  Their son was born there in October 2006.   They separated in February 2010 and divorced in August

2010.  In October 2011 Ms Qamus’ daughter, to another man, was born.

[3]      In mid-2015 Ms Qamus applied to a United States court to relocate, with her son, to New Zealand.  On 30 June 2016 the United States court denied the request to relocate to New Zealand and made shared custody orders with Ms Qamus having primary physical custody.

[4]      On 10 July 2016 Ms Qamus took her children to New Zealand.  The United States  court  granted  emergency  orders  granting  temporary  sole  custody  to  Mr Rowley and ordered Ms Qamus to return her son to Mr Rowley in Massachusetts. She did not do so.

[5]      Mr Rowley applied for return of his son in the New Zealand Family Court. On 20 March 2017 the Family Court ordered return of the son to the United States.1

Ms Qamus has appealed to the High Court.  The appeal is to be heard on 23 August

2017.

1      Rowley  v  Qamus  [2017]  NZFC  2023.     The  parents’ names  in  the  intituling  have  been

anonymised, consistent with ss 11B and 11C of the Family Courts Act 1980.

[6]      Ms Qamus applies to adduce further evidence about her immigration status in the United States.  Mr Rowley applies for an order requiring Ms Qamus to answer questions about proceedings for the return of the daughter to the United States.

Issue 1: Should Ms Qamus be allowed to provide supplementary evidence?

Application and submissions

[7]      In  a minute of 26 July 2017 Hinton J  noted Ms Qamus’ request to file additional evidence about her inability to return to the United States.  Given that it would clearly be relevant and a very new development Hinton J allowed her to file such an affidavit which would be treated as an application for leave to adduce further evidence.   Ms Qamus has done that by filing a document intituled “Affidavit (Supplementary)” which  attaches  advice from the United States  Citizenship and Immigration Services dated 21 July 2017 about Ms Qamus’ status in the United States.

[8]      Ms Soljan, for Mr Rowley, initially opposed the Affidavit (Supplementary) being adduced as it was incomplete.   She, and the Court, have subsequently been provided with the rest of the letter.  Ms Soljan also filed a notice of opposition to the Affidavit being adduced because Ms Qamus does not have the necessary expert qualifications to provide evidence of United States law.  At the hearing Ms Soljan advised the application is neither consented to, nor opposed.

Relevant law

[9]      Rule 20.16 of the High Court Rules 2016 provides a party to an appeal may adduce further evidence only with the leave of the Court.  The Court may grant leave only if there are special reasons for hearing the evidence.  Rule 20.16(3) gives, as an example of a special reason, “that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal”.  The further evidence must be given by affidavit unless the Court otherwise directs.

Decision

[10]     The letter from US Citizenship and Immigration Services was written after the date of the Family Court decision.   The letter provides information about Ms Qamus’ status in the United States that is likely to be relevant to the appeal.  If she is unable to return to the United States, that may affect whether her son should be ordered to return.  Ms Qamus is not an expert on United States law and that may affect the weight the Court will attribute to various statements made in her affidavit. But it is not a reason for the Court not to have the evidence.  More information is usually better than less, as long as it is relevant.   I grant the application and Ms Soljan’s request for leave to file a reply.

Issue 2: Should Ms Qamus have to answer interrogatories?

Application and submissions

[11]     Ms  Soljan,  for  Mr  Rowley,  applied  for  an  order  notice  on  4  July 2017 requiring Ms Qamus to answer interrogatories set out in paragraph 5 of the notice, concerning Ms Qamus’ daughter’s status. The matters raised are:

(a)      whether Ms Qamus had applied to a United States court to remove her daughter permanently or temporarily from the United States and, if so, the details of such applications (at [5](a)–(d));

(b)whether any order of a United States court is currently in force in relation  to  the  custody  of  her  daughter  and,  if  so,  who  has  been granted custody (at [5](e)–(f)); and

(c)       whether her daughter’s father has applied for return of Ms Qamus’

daughter to the United States and if so, details of it (at [5](g)–(h)).

[12]     Ms Soljan points to Ms Qamus submitting to the Family Court that separation of her son from her daughter was relevant to whether there is a grave risk to her son of ordering his return to the United States.  She submits it would be relevant to the appeal if the daughter may also have to be returned even though Ms Qamus’ submission on the appeal do not focus on that issue.  She also points to the report of

Dr Allan Cooke, the lawyer appointed to act for the son in these proceedings.  He says separation from the daughter is relevant to whether there is a grave risk to, and to the views of, the son.  Ms Soljan says the focus is on [5](e)–(h) and [5](a)–(d) are additional context.   Finally, Ms Soljan submits the daughter’s situation would be relevant to the exercise of any residual discretion by the Court if, on appeal, it finds a defence is made out.

[13]     Ms Qamus vehemently objects to these questions and requests she not be required to answer them because they do not relate to the child that is the subject of the appeal and are irrelevant to it.   She says there are other New Zealand Family Court proceedings for return of her daughter overseas, the next call of which is on

30 August 2017.   She suggests, because Ms Soljan is in chambers with counsel representing the applicant in those proceedings, this application is being pursued for the purposes of those proceedings.   She also says providing the information will undermine her daughter’s privacy.

Law

[14]     Rule 8.38 of the High Court Rules 2016 provides a judge may, at any stage of any proceeding, order any party to file and serve a statement in answer to interrogatories specified or referred to in the order.  The interrogatories must relate to the matters in question in the proceeding.  The judge must not make an order unless satisfied the order is necessary at the time it is made.

Decision

[15]     Again, more information is usually better than less, as long as it is relevant. If there is a prospect Ms Qamus’ daughter will be returned to the United States, that must be a relevant consideration to the appeal, just as is the prospect that Ms Qamus may not be able to do so.  However, I do not consider the interrogatories concerning applications to United States courts to remove the daughter are likely to be relevant to the issues on appeal. Counsel sharing chambers does not affect that.  I grant the application in relation to the interrogatories at [5](e)–(h) of the notice.

[16]     Finally, I record that I raised with Ms Qamus and Ms Soljan the question of coordination of the New Zealand courts’ consideration of both of these siblings’ cases.  Ms Qamus said she just wanted decisions, quickly.  Ms Soljan, in unhelpfully assertive tones, opposed any suggestion of consolidation.  Given that these cases are at different stages and different jurisdictions I do not pursue this question at this time.  But it may arise again.

Result

[17]     Ms Qamus’ application to adduce further evidence is granted.   Mr Rowley has until 5 pm Friday 18 August 2018 to file and serve any reply affidavit.

[18]     Mr Rowley’s application to require answers to the interrogatories, at [5](e)– (h) of the notice to answer interrogatories, is also granted.  The answers should be filed with the Court and served on Mr Rowley by 5 pm Monday 21 August 2017.

[19]     Ms Qamus has leave to file and serve revised submissions for the hearing by

9 am Monday 21 August 2017.   Mr Rowley has leave to file and serve revised submissions in response by noon Tuesday 22 August 2017.

[20]     Finally, I have anonymised the parties’ names, consistent with ss 11B and

11C of the Family Courts Act 1980.  I have used an initial.  When the judgment is made public the initials will need to be replaced with names.  I propose to use the names “Ms Qamus” and “Mr Rowley”.  If either party objects to a name, they should advise the Court within five working days of the date of this judgment.

..................................................................

Palmer J