R v S CA128/03

[2003] NZCA 369

IN THE COURT OF APPEAL OF NEW ZEALAND

CA128/03

BETWEEN

R

Appellant

AND

S

Respondent

Hearing:         14 July 2003

Coram:Blanchard J Tipping J Anderson J

Appearances: B V MacLean for Appellant

C R Pidgeon QC for Respondent Judgment:     16 July 2003

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]    R, the mother of a nine year old girl, has applied to this Court pursuant to s31B(1)(b) of the Guardianship Act 1968 for leave to appeal on a question of law against a judgment of the High Court delivered by Priestley J on behalf of himself and Frater J. S, the respondent, is the girl’s father.  At the conclusion of argument  we announced our decision to dismiss the application, indicating that our reasons would follow; as they now do.

[2]    The parents and child previously lived in Australia where the parents became estranged. While litigation concerning the welfare of the child was before the courts of that country the mother abducted the child to New Zealand, where she attempted to establish a new life for herself and the child, to the exclusion of the father, and under an assumed name. The father eventually traced his daughter’s whereabouts

R V S CA CA128/03 [16 July 2003]

and applied to the Family Court for an order for return of the child pursuant to the Guardianship Amendment Act 1991 which gives effect to the Hague Convention on the Civil Aspects of International Child Abduction. Consistent with Article 13 of the Convention, s13 of the Guardianship Amendment Act 1999 makes provision for the discretionary refusal of an order for return in the following terms relevant to this proceeding:

13    Grounds for refusal of order for return of child

(1)     Where an application is made under subsection (1) of section 12 of this Act 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 subsection (2) of that section for the return of the child if any person who opposes the making of the order establishes to the satisfaction of the Court—

…

(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;

[3]    When the application for an order for return was heard in the Family Court the mother relied on s13(1)(c) on two particular bases. First, her abduction of the child was a contempt of the Australian courts and her return to that country was inhibited by the risk of prosecution for such contempt. Second, that she had relatively recently been diagnosed as suffering from cancer requiring radical surgery and continuing treatment which was not available in proximity to the original domicile of the parties. The practical consequence of those medical factors was that returning the child to Australia would necessarily lead to a separation of mother and child while the former underwent and recovered from surgery. Expert psychological evidence was placed before the Family Court relating to the consequences for the child of that separation.

[4]    The Family Court Judge was, correctly, not moved by the submitted or apprehended criminal consequences of the mother’s conduct but she formed the view that it was intolerable for the child to be parted from her primary attachment figure who was due to have major surgery within weeks of the decision; that the alternative of the mother electing not to undergo treatment in order to return to Australia with

the child was not acceptable, in consequence of which the child, if she were returned to Australia, would be distressed about the progress of her mother in New Zealand. The Family Court Judge considered the mother’s need to remain in New Zealand for surgery in the immediate future as an overwhelming factor that mandated her exercising her discretion to decline the application.

[5]    The father appealed to the High Court which, as mentioned, heard the appeal as a Full Bench, albeit rendering a single judgment.

[6]    The High Court reviewed the jurisprudence in this area and observed that there was a two phase inquiry before a court when a party invokes s13. The first phase is to establish whether a s13 ground has been made out, the onus being on the party who opposes an order returning the child. If a ground is made out, there is a second phase involving the court’s exercise of its discretion.

[7]    The High Court considered that the Family Court Judge had approached the task correctly in principle and that but for the mother’s ill health an order for return would have been made as the Family Court Judge’s reasons made plain. But it held that “the onus which s13(1) places on a party is a high onus. High too is the gravity which must be established as a subs (c) ground.” The High Court held that in view  of the psychological evidence in its entirety, the duration of separation and certain aspects underpinning psychological opinion evidence there was not an adequate s13(1)(c) basis for declining an order for return. Even if there were, discretionary considerations would sound against declining to make an order for return.

[8]    The High Court allowed the appeal, made an order for return pursuant to s12(2) of the Guardianship Amendment Act 1999 and ordered the issue of a warrant pursuant to s26(1) directing, however, that “such warrant is to lie in court until three weeks after any surgery which may have been scheduled for the respondent … for the months of June or July 2003, or until 31 July 2003, whichever date last occurs.”

[9]    The brevity of the above analysis of the High Court decision does not, in a broad sense, do justice to the thoroughness and learning of the High Court’s jurisprudential and factual analysis; but the nature of the present application makes it

unnecessary to do more than indicate the general nature of the High Court’s approach. This is because applications such as the present must be focused on questions of law and do not invite an approach which would be more apt for a general appeal. Section 31(b) of the Guardianship Act expresses a bare power to grant leave in respect of a question of law but in principle the question must be capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay a further appeal.   S v S [1999] 3 NZLR 513 at para [26].

[10]   On this application counsel points to four areas said to raise a question or questions of law warranting leave. First, there is the observation made in the High Court judgment that “the onus which s13(1) places on a party is a high onus. High too is the gravity which must be established as a subs (c) ground”. Second, counsel takes issue with the High Court’s direction that a warrant pursuant to s26(1) of the Guardianship Amendment Act 1991 would lie in court until three weeks after any surgery. Third, counsel took issue with the High Court’s criticism of aspects of the evidence of a psychologist appointed by the Family Court. Fourth, it was submitted the High Court gave inadequate weight to the child’s wishes.

[11]   If one were to reduce the first of the grounds to a question of law it would be, presumably, “is the onus which s13(1) places on a party a high onus and must the gravity of any risk be high?”

[12]   Approaching the question in that way we note Mr MacLean’s submissions that the proposition fails to distinguish between the nature of the onus and the nature of the risk. If the dictum relied on by counsel were taken out of context and should seem to be declaring a wrong principle which was determinative of the appeal the present application might have come within the criteria for the grant of leave. But it was taken out of context and was not determinative of the appeal. It is quite clear from a reading of the judgment as a whole that the High Court correctly saw the onus in terms of the assumptions of the Convention and domestic legislation that children abducted across borders would be returned except for very good cause affecting the welfare of the child in the specified respects. The isolated passage relied on by counsel may seem to conflate ideas concerning the significance of the onus and the

justification for departure from the purpose of the Convention, but having regard to the extensive discussion of fact and principle in a judgment of more than 35 pages the brief statement taken out of context is far from a question of law which ought be submitted to this Court.

[13]   We are equally unpersuaded by the second ground relied on by Mr MacLean. If it were reduced to a question of law it could scarcely avail the appellant because success would mean the rescission of the order for the warrant to lie in court with the result that it would be executed immediately.

[14]   Neither of the other matters are questions of law in any form. They are complaints about the High Court’s treatment of facts.

[15]For these reasons the application for leave to appeal was dismissed.

Solicitors:
Chambers Craig, Ponsonby for Appellant