Roberts v Cresswell
[2022] NZHC 2337
•13 September 2022
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2022-409-000042
[2022] NZHC 2337
UNDER the Care of Children Act 2004 IN THE MATTER
of an appeal against a decision of the High Court at Christchurch
BETWEEN
ROBERTS
Applicant
AND
CRESSWELL
Respondent
Hearing: 5 September 2022 Appearances:
J A Sutton the Applicant
S N van Bohemen and E S M L B Gawar Kohistani for the Respondent
Judgment:
13 September 2022
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 13 September 2022 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
ROBERTS v CRESSWELL [2022] NZHC 2337 [13 September 2022]
[1] This proceeding originated in the Family Court as an application by the father of the parties’ children for their return to France pursuant to s 105 of the Care of Children Act 2004 (the Act). An order for return of the children to France was made by the Family Court.
[2] The applicant seeks leave to appeal the decision of 1 June 2022 which quashed the Family Court order for return of the parties’ children to France (the Judgment).1
Principles governing applications for leave to appeal
[3] The principles to be considered by this Court when considering the leave application are broadly agreed between the parties.
[4] The test for granting leave is well settled.2 The Court of Appeal in the recent case of G v G opined:3
[6] The Act provides for applications for the return of children to be made to the Family Court. There is a right of appeal to the High Court. The decision of the High Court on an appeal from the Family Court is final, subject to s 145 of the Act, which provides for an appeal to this Court with the leave of this Court.
[7] The test for granting leave to bring a second appeal to this Court is well established:
(a)The appeal must raise some question of law or fact 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 of the further appeal.
(b)In the end, the guiding principle must be the requirements of justice.
(c)Upon a second appeal, this Court is not engaged in the correction of error. Its primary function is to clarify the law and to determine whether it has been properly construed and applied by the court below.
(footnotes omitted)
1 Cresswell v Roberts [2022] NZHC 1265 [Judgment].
2 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
3 G v G [2022] NZCA 67.
The applicant’s submissions
[5] Counsel for the applicant, Mr Sutton, submitted there were three errors of law, namely that the Court:
(a)applied a “substantial” and not “grave” risk test, thereby failing to meet the requisite evidential threshold when finding an affirmative defence be made out;
(b)was incorrect in its approach to evidential matters (by allowing in and relying on evidence from a psychiatrist expert retained by the respondent); and
(c)failed to consider protective factors that would mitigate the identifiable risks (thereby deviating from the LRR v COL approach to “grave risk”).
First ground – the Court applied a “substantial” not “grave” risk of harm test
The applicant’s submissions
[6] First, Mr Sutton submitted the Court erred in that the evidence did not establish the “grave” defence under s 106(1)(c) of the Act. The applicant relied on LRR v COL, the Guide to Good Practice recently published by the Hague Conference on Private International Law (Good Practice Guide) and several decisions of the Family and High Courts to demonstrate the correct threshold to be met to establish the “grave risk” defence.4
[7] Second, Mr Sutton submitted the “standard of behaviour” which normally leads to a conclusion that the test is satisfied involves breaches and contempt of protection orders, sustained domestic violence or poor mental health outcomes for the children themselves. He emphasised that “it is the children, not the parents who are
4 LRR v COL [2020] NZCA 209, [2020] 2 NZLR 610; Coates v Bowden (2007) 26 FRNZ 210 (HC)
at [45], citing Clarke v Carson [1996] 1 NZLR 349; (1995) 13 FRNZ 662; Damiano v Damiano
[1993] NZFLR 548 (FC) at 554; Sparrow v Waldegrave [2019] NZFC 6196 at [73]; Akau v Tilo[2019] NZFC 5746; B v B [1994] NZFLR 497 (HC); Marsden v Marsden (1995) 13 FRNZ 27 (FC); Adams v Hood [2019] NZFC 6621; Summer v Green [2022] NZCA 91; KN v CN [2016]
NZHC 2049; McDonnell v Collins [1994] NZFLR 885 (FC); and Pickersgill v Grantham [1994] NZFLR 854 (FC).
the subject of such analysis”. The implication was that the Court had focused on the respondent’s mental health, and not that of the children, in concluding the children would be placed in an intolerable situation if returned to France.
[8] Third, Mr Sutton submitted there was no evidence to demonstrate that the French legal system is inadequate to protect the children from a grave risk of serious harm or being placed in an intolerable situation. Nor was there any suggestion the applicant would fail to comply with any orders made by the French courts. This, he said, made all the difference and the Court had erred in not appreciating those facts.
[9] Fourth, Mr Sutton submitted that the concerns the respondent opined would put the children in an intolerable situation — such as her financial difficulties, language deficits and an absence of social support — “are all generic consequences” of abduction and do not satisfy the grave risk test.
[10] Fifth, Mr Sutton submitted that while the respondent is in New Zealand the inquiry about the nature of the level of risk is a very subjective one, based largely on the respondent’s own evidence, and such speculation is not sufficient to establish the s 106(1)(c) defence. This appears to be a reference to the submission that the Court ought to have discounted the respondent’s evidence and, in particular, the evidence of the expert psychiatrist who gave evidence on behalf of the respondent.
Discussion
[11] The Judgment identified that the girls faced three grave risks on return to France:
(a)first — the children being separated from their primary carer by reason of existing orders made by the courts in France;5
(b)second — the children being separated from both their parents for significant periods of time;6 and
5 Judgment, above n 1, at [107]–[108].
6 At [120]–[121].
(c)third — the children, if they remained in the respondent’s care in France, being exposed to an intolerable situation because of the likelihood that the respondent would experience significant mental distress that would directly and detrimentally impact the children.7
Risks one and two
[12]In relation to risks one and two, I set out the relevant section of the Judgment:
[122] The questions posed at the outset on grounds (a) and (c) are answered in the affirmative for the foregoing reasons. Therefore, I am satisfied on the evidence before me that:
(a)there is a grave risk of A and B being placed in an intolerable situation if returned to France because of the impact of not being in [the respondent’s] primary care; and
(b)there is also a grave risk A and B may find themselves in the care of third parties and not with either of their primary attachment figures unless appropriate protective measures are put in place in France to mitigate these risks.
[123] Unlike the [respondent], the [respondent’s] counsel and Mr Wren, I am not necessarily drawn to some sinister conclusion about why the [applicant] has not offered to seek enforceable protective measures in the French court to mitigate against these identifiable risks. It could have been simply that he was not advised to do so. However, the stark fact remains that he has not.
[124] I observe that if grounds [set out at [11](a) and (b)] were the only grounds before the Court then I may have considered an adjournment to provide the [applicant] with the opportunity to initiate a variation of the interim orders, in order to give legal status to A and B being in the [respondent’s] primary care and providing for him to have regular time with them pending the final hearing in the Family Court in France (together with related support and accommodation measures). This would, in the absence of any other successful affirmative defence, have ensured A and B’s return to France could be secured safely. However, there is another ground to consider.
[13] The evidence relied on for those findings was the uncontested evidence of the court-appointed psychologist, Mr Kelly. He interviewed both parties and met with the children.
[14] It is tolerably clear from that section of the Judgment that, having established the likelihood of grave risk of harm to the children on their return to France on those
7 At [200].
grounds, consideration was given to protective measures that could have been put in place in France to protect the children from that harm.
[15] Counsel for the respondent, Mr van Bohemen, submitted it is clear the Court considered the risks and, having found them to exist, did not rush to the conclusion that the children should not be returned to France but rather considered and identified protective measures that could have been put in place in France to mitigate against those risks. Had those protective measures been put in place the “grave risk” defence would not have been successful.
[16]There is no appealable error of law obvious here.
Risk three — detrimental impact of mother’s declining wellbeing on the children
[17] The evidence established a risk of the respondent’s health declining to an extent that would detrimentally impact the children, so as to amount to an intolerable situation for them. In approaching this issue, the Court said:
[193] What I must do now is review the evidence to assess, looking forward, whether the [respondent’s] return to France with A and B would trigger her PTSD and so negatively affect her psychological state as to affect her ability to adequately parent A and B, thereby placing them in an intolerable situation.
[18] It was established that there was a sufficient likelihood of the decline of the respondent’s psychological state and a concomitant impact on the children, based particularly on the evidence of Dr Macdonald, a psychiatrist retained by the respondent, and Mr Kelly.8
[19] As regards the seriousness of the risk, particular regard was paid to Mr Kelly’s evidence as to what the consequences could be for the children:9
Assuming there is a significant deterioration in [the respondent’s] physical and mental wellbeing the girls are likely to experience significant distress. … In general children in the presence of a parent experiencing a crisis of mental health are at increased risk of physical injury, emotional distress, reduced academic attainment, behaviour in school can become problematic. They may experience regression in confidence and self-help skills. They may experience embarrassment and shame and blame themselves for their parents’ conflict.
8 Judgment, above n 1, at [200].
9 At [184].
Their social interactions may be affected. They are more likely to be in conflict with others. …
[20] Given both the probability of the risk and the seriousness of the consequences if the risk eventuated, the grave risk was established.10
[21] Mr Sutton submitted that the evidence could only establish a “substantial risk” at best, and not a “grave risk” because:
(a)characteristics of other “grave risk” cases said to be a “standard of behaviour” for such cases were not present in the instant case;
(b)there was no evidence relating to inadequacies in the ability of the French legal system to protect the children;
(c)there was no evidence that the applicant would fail to comply with French Family Court orders; and
(d)the specific issues that the respondent would face upon return are in fact generic consequences that flow from abduction and being ordered to return to the country of origin, and cannot contribute to the finding of a “grave risk”.
[22] Mr van Bohemen submitted that the submission set out in [21](a) was without merit because:
(a)it was an invitation to revisit the facts;
(b)it was legally misconceived, in that there is no template for what leads to a finding of a grave risk and each case will turn on its facts; and
(c)it was factually inaccurate.
10 At [205].
[23] He argued many of the behavioural characteristics said by Mr Sutton to amount to the “standard of behaviour” worthy of a grave risk finding were, in fact, present in the instant case. Particularly:
(a)there was a finding of family violence, including an instance of physical violence and “a pattern of conduct that was belittling and undermining of the mother’s psychological wellbeing”;11 and
(b)there was unequivocal evidence as to poor mental health outcomes for the children.12
[24] As to the submission set out at [21](b), Mr van Bohemen submitted this submission was ill-conceived because there was no allegation made that the French legal system was ill-equipped to protect the best interests of the children. Rather, the issue was whether there were sufficient protective measures in the round to ensure the children would be protected from the harm identified.
[25] Similarly, the applicant’s compliance with the French Court orders (at [21](c)) was not in question. Ironically, the issue for the children was the risk that the applicant would require compliance with (and enforcement of) the orders he had obtained, which would effectively separate the children from their primary caregiver.
[26] Mr van Bohemen argued the submission set out in [21](d) was without merit because:
(a)it is an invitation to reassess the facts; and
(b)it is factually inaccurate because there were several unusual factual features of this case.
[27] Mr van Bohemen also submitted the submission set out at [21](d) was legally wrong because the submission is, in substance, that if there is a consequence for the
11 Judgment, above n 1, at [154]–[158].
12 For example at [102] and [184].
taking parent which is of general application, it should be disregarded when considering “grave risk”. He said there is no authority that supports this and nor is that surprising when the impact a so-called generic consequence may have on one parent, or one child, in a particular case may be entirely different to the impact that it has on those in another case.13
[28] Mr van Bohemen’s submission must be correct because all the above arguments are in direct contradiction to the guidance of the Court of Appeal in LRR v COL which emphasised the need for the Court to consider the best interests of the child in his or her particular circumstances and to make a fact-specific inquiry in each case.14
Second ground — that the Court’s approach to evidence was incorrect because it relied on evidence from an expert retained by the respondent
[29] The respondent obtained an opinion from a psychiatrist, Dr Macdonald. The Judgment clearly indicates the Court’s reliance on the report.
Applicant’s submissions
[30] Mr Sutton submitted first that the effect of the Court giving substantial weight to Dr Macdonald’s report was to “alter the method of evidence” applied in cases under the Act. Mr Sutton argued that, in these cases, it is imperative the Court maintain a stringent approach to the evidence by encouraging primary reliance on s 133 reports and the Court should not give significant weight to a medical report commissioned by one party.
[31] To exemplify this submission, Mr Sutton noted the brief for the psychiatrist was not set or approved by the Family Court. Rather, Dr Macdonald received her brief from Parry Field Lawyers, counsel for the respondent. Mr Sutton said Dr Macdonald was asked to comment on “any psychological/psychiatric conditions or symptoms (if evident) and the impact of those on her psychological functioning”, and the extent to which relocation to France would “have any effect on her psychological functioning
13 See, for example, the discussion in Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 AC 257 at [34].
14 See LRR v COL, above n 4, at [83], [89], [90], [93] and [95].
and ability to care for the children/provide for their emotional needs”. He concluded this submission by arguing that the brief invites a finding of impacted psychological functioning impairing the respondent’s ability to care for the children.
[32] Second, Mr Sutton submitted that the evidence of Dr Macdonald, and that of the respondent herself, was so subjective as to provide no basis whatsoever for the Court’s finding that the mother suffered from Post-Traumatic Stress Disorder (PTSD) and that this condition would be triggered by a return to France to the extent that it would so impair the respondent’s parenting as to place the children in an intolerable situation.
[33] Mr Sutton submitted the Court should have exercised more caution in relying on Dr Macdonald’s report, given the clear potential for it to be self-serving (consistent with the necessity for caution emphasised by Muir J in KN v CN when considering evidence that a mother’s mental health may expose children to a grave risk of physical or psychological harm).15 In considering whether a foundation had been established for the respondent’s diagnosis of PTSD, the Court referred multiple times to Dr Macdonald’s report, noting:
[170] I do not consider there is any effective challenge to the evidence of Dr Macdonald. Had there been one I would have expected an application to adduce evidence from another expert witness to provide an evidential basis for the challenge to Dr Macdonald’s expertise, methodology or conclusions, or in the alternative an application to cross examine her to have been made …
[34] Third, Mr Sutton submitted that the fact Dr Macdonald did not meet or assess the applicant, nor give him an opportunity to comment on her report, gives rise to procedural concerns around bias and breach of the applicant’s natural justice rights.16 This, he said, is consistent with comments from Judge von Dadelszen in Secretary for Justice v M that it is better practice for the psychologist to have spoken to both parents in preparing the s 133 report.17 Mr Sutton submitted this approach should apply to any report to be relied on by the Court in cases under the Act.
15 KN v CN, above n 4.
16 New Zealand Bill of Rights Act 1990, s 27.
17 Secretary for Justice v M (2009) 28 FRNZ 654 (FC) at [98].
Respondent’s submissions
[35] As to Mr Sutton’s submissions as set out in [30], Mr van Bohemen submitted that parties obtaining expert evidence themselves in relation to their own mental functioning is an accepted and prevalent practice in cases under the Act.
[36] As to Mr Sutton’s submission set out in [31], Mr van Bohemen submitted that the Mr Sutton had misquoted the brief given to Dr Macdonald.
[37]The actual brief was:
28.We request that you assess and report on the following matters:
(a)[The respondent’s] historic and current psychological wellbeing, including evidence of any psychological/psychiatric conditions or symptoms (if any) and the impact of those on her psychological functioning; and
(b)Your opinion as to the consequences for [the respondent] if she returned to France with the children as to her:
(i)psychological functioning; and
(ii)ability to care for the children / provide for their emotional needs.
[38] The brief was in fact framed neutrally. The words “if any” in (a) denote an open-ended inquiry which clearly contemplates that it may be that ultimately no such conditions or symptoms are present.
[39] Thus, Mr van Bohemen contended Mr Sutton’s submission amounts to an implication that, because the brief was set by the party’s solicitor, ipso facto the expert witness breached her obligations to the Court, namely:
An expert witness has an overriding duty to assist the court impartially on relevant matters within the expert’s area of expertise.
An expert witness is not an advocate for the party who engages the witness.
[40] Mr van Bohemen submitted, in summary, that the submission made in [31] is answered by the scrutiny the Court applied when assessing the reliability of Dr Macdonald’s evidence at [177]–[182] of the Judgment.
[41] As to the matters addressed in [32], Mr van Bohemen submitted that invariably cases under the Act involving s 106(1)(c) will involve self-reported data, which will, itself, need to be scrutinised. He argued there is nothing unusual about this. For example, in Re S the evidence included a psychologist report on the mother.18 Seemingly, the psychologist’s report was based on “self-reported” evidence or material, however that did not diminish its relevance.
[42] The report went no further than it should, given those limitations (that is the report did not purport to assess the likelihood of occurrence of those triggers which would lead to a decline in the respondent’s psychological wellbeing).
[43] As to the submission set out in [34], Mr van Bohemen submitted there was no necessity for Dr Macdonald to speak with the applicant, and nor was a factual basis laid by the applicant to challenge the diagnosis as being unreliable because of the absence of such assessment (in the same way that no issue is taken with the psychologist report submitted by the applicant which too was based on his self-reported evidence).
[44] Further, Mr van Bohemen argued that the submission is misconceived. Section 27 of the New Zealand Bill of Rights Act 1990 relates to a right to be heard by a court or tribunal. It does not relate to medical assessments.
[45] Mr van Bohemen submitted that Mr Sutton’s reliance on Secretary for Justice v M is ill-conceived because the Court in that case did not object to the report, but rather expressed that for a court-appointed report regarding child views it would be better practice to interview both parents.19 Thus, reliance on this observation is of no application to the instant case, because there was both a s 133 report regarding the psychological impact on the children (where both parents were interviewed) and then
18 Re: S (A Child) (Abduction: Rights of Custody), above n 13, at [17]–[18].
19 Secretary for Justice v M, above n 17, at [98].
a private report which dealt with different subject matter, namely the respondent’s psychological health.
[46] Finally, Mr van Bohemen referred to those passages of the Judgment where the Court is clearly searching for and finding extraneous evidence corroborative of the respondent’s evidence and Dr Macdonald’s expert opinion.20
Discussion
[47] There is not any proscribed “method of evidence” that may be required in Convention cases. The evidence that is relied on by the party running the affirmative defence will turn on the nature of the allegations being advanced by that party.
[48] The Court was not setting any “method of evidence” for these kinds of cases (beyond applying the principles laid down by the Court of Appeal in Basingstoke v Groot).21
[49] There is no requirement that all psychiatric or psychological evidence be admitted through s 133 and nor should there be. The reliability of evidence will turn on settled rules of admissibility.
[50] There is no legal basis for the Court to obtain a psychiatric (or psychological) assessment of a parent under s 133. That section is restricted to assessments of children.22
[51] LRR v COL provides a complete answer to the submission being advanced by the applicant here. In an interlocutory application, prior to the substantive Court of Appeal decision in those proceedings, the appellant sought to introduce a psychiatric report by affidavit.23 The respondent in that case advanced (among other reasons) a similar line of reasoning that:24
20 Judgment, above n 1, at [152]–[157], [178]–[181], [183].
21 Basingstoke v Groot [2007] NZFLR 363 (CA).
22 Care of Children Act 2004, s 133(1).
23 LRR v COL [2019] NZCA 620 at [5](a).
24 At [11].
… [Dr Gamon’s affidavit] is based on the appellant’s self-reporting and is not supported by any objective or independently verifiable facts. Her opinion on the impact on H if he returns to Australia is speculative.
Therefore, the respondent argued it did not meet the requirement of substantial helpfulness under s 25 of the Evidence Act 2006.
[52] The interlocutory judgment did not decide on whether the evidence was admissible and left it to the full hearing, but it did not agree with this argument, noting:25
… [w]e do not accept the respondent’s argument that we cannot receive Dr Gammon’s and Ms Cehtel’s affidavits as they do not meet the requirement of substantial helpfulness under s 25 of the Evidence Act. Section 12A of the Family Court Act 1980, which provides that the court hearing the proceeding may receive any evidence, whether or not admissible under the Evidence Act, displaces s 25. That applies at all stages of the life of a Care of Children Act proceeding. That said, s 12A also provides that the court may receive evidence it considers may assist it to determine the proceeding. In this respect the respondent’s argument makes a distinction without a difference. Expert evidence that does not meet the substantial helpfulness threshold under s 25 is unlikely to assist the court in terms of s 12A.
[53] In the substantive judgment, the Court of Appeal ruled that it was admissible, and therefore could be relied upon:26
The affidavit of Dr Gammon provides up-to-date information about the mother’s mental health, and risks associated with her return to Australia. It is credible and cogent: we found it of considerable assistance in relation to the issues at the heart of this appeal. We accept the father’s submission that evidence from a psychologist about these topics could have been adduced in the Family Court. We consider that such evidence could and should have been provided to the Family Court: it would have been of real assistance to that Court and to the High Court on appeal. Dr Gammon’s affidavit is fresh in the sense that it is current: even if there had been similar evidence in the Family Court, it is likely we would have sought an update some two years on. To the extent that it is not fresh, we consider that the interests of H require that we receive it. It would be wrong for us to make a decision about the future of this young child without reference to cogent evidence of this kind, now that it has been made available.
[54] The criticism that privately commissioned evidence cannot per se be relied on has been answered — it may be, subject to the usual rules of evidence.
25 LRR v COL, above n 23, at [14].
26 LRR v COL, above n 4, at [127].
[55] There can therefore be no substance to this ground because what it boils down to is the weight applied by the Court to the evidence, which is not a legitimate ground of appeal.
Third ground — failure to sufficiently weigh protective factors
[56] The Court of Appeal in LRR v COL noted that the protective measures available in the requesting State will often be an important factor in determining whether return will expose a child to a grave risk of an intolerable situation.27
[57] The Court was clear that if there is cogent evidence that return would expose the child to a grave risk of an intolerable situation, the Court needs to consider whether protective measures can be put in place in the requesting State to protect the child from that risk. The Court noted further that it can expect the legal systems of other Convention countries will generally be designed to protect children from harm.28
[58] The Court of Appeal considered this in A v A, where a mother had abducted the child from Denmark to New Zealand.29 The mother resisted return on the basis that there was a possibility the child would be returned to the care of her father against whom allegations of sexual abuse had been made. The Court of Appeal stated that in cases where a grave risk is alleged under this defence, the Court of the country to which the child has been abducted will only be the appropriate Court if it is established that the child’s return to the country of habitual residence will give rise to a grave risk of intolerable harm. The Court noted:30
… where the system of law in the country of habitual residence makes the best interests of the child paramount and provides mechanisms by which the best interests of the child can be protected and properly dealt with, it is for the Court of that country to which the child has been abducted to determine the best interests of the child …
[59] The Good Practice Guide notes that an examination of the grave risk exception should include, if considered necessary and appropriate, consideration of the
27 LRR v COL, above n 4, at [112].
28 At [113], citing HJ v Secretary for Justice [2006] NZFLR 1005 (CA) at [31]–[33]; Smith v Adam
[2007] NZFLR 447 (CA) at [7]; and Mikova v Tova [2016] NZHC 1983.
29 A v A [1996] 2 NZLR 517 (CA).
30 At 523.
availability of adequate and effective measures of protection in the State of habitual residence.31
[60] Mr Sutton submitted the Court generally gave insufficient weight to the protective factors. Specifically, he submitted the Court did not consider any protective factors in the analysis of whether there was a grave risk the children would be placed in an intolerable situation because of the likelihood of the respondent’s PTSD being triggered, her parenting impaired, and the consequences that would follow for the children. He submitted the Court did not provide an opportunity for further protective factors to be initiated.
[61] Mr Sutton identified several protective measures that would mitigate the risk of the children being placed in an intolerable situation on return, namely:
(a)The applicant’s family have made it clear that they would be present and willing to assist with care of the children, and support of the respondent were she to return to France.
(b)There is an interim ruling from the Family Court at Perpignan effectively granting the applicant primary care of the children, suggesting that the Court has assessed that there is no risk to the children from being in the custody of the applicant.
(c)The parties would no longer be living together, which significantly mitigates the risk of any incidents of family violence.
(d)France is a party to the Convention, and its legal system is assumed to make the best interests of the child paramount and provide mechanisms to protect those best interests (in the absence of evidence to the contrary).
31 Hague Conference on Private International Law 1980 Child Abduction Convention Guide to Good Practice Part VI Article 13(1)(b) (The Hague, Netherlands, 2020) at 27.
(e)The respondent had consulted a registered psychologist in France before leaving that country. Were she to return to France, she could mitigate the risk to her mental health by getting help from a psychologist once again.
[62] Mr Sutton submitted these protective factors militated strongly against the Court’s finding there was a grave risk the children would be placed in an intolerable situation if they returned to France. Accordingly, Mr Sutton submitted opportunity should have been afforded to the applicant to initiate a variation of the French interim orders as a protective measure, as the Court alluded to in relation to the other grounds.32
[63] This grave risk related to the psychosocial stressors that would likely be present on the respondent and therefore on the children in France upon return, the combination of which would more likely than not trigger the respondent’s PTSD. Mr van Bohemen submitted these included:
(a)inability to secure employment beyond cleaning/waitressing;33
(b)ongoing co-parenting contact with the applicant;34
(c)no financial support from the applicant beyond a State supplement;35 and
(d)no support network.36
[64] The Court of Appeal in LRR v COL said that “the effectiveness of suggested protections against that risk, should always focus on the specific case”.37
32 Judgment, above n 1, at [124].
33 At [194].
34 At [199].
35 At [195].
36 At [196]–[198].
37 LRR v COL, above n 4, at [113].
[65] Mr van Bohemen said the protective measures identified by the applicant were scrutinised by the Court, and the conclusion was that no such protective measures could be put in place to mitigate these challenges other than the applicant meeting the material needs of the respondent to help her get re-established independently in France (as is often the case in cases under the Act).38 The applicant had already deposed that he would not provide such support beyond what he was ordered to pay (which was
$0).
[66] As to the submission made at [61](a), this potential factor was considered. The Court determined that, in any event, the respondent’s subjective view of her in-laws in France would prevent any offers of support mitigating against the risk of her PTSD being triggered.39
[67] As far as [61](b) is concerned, that overlooks the very clear evidence of the court-appointed psychologist to the effect that the children would be significantly distressed if not in their primary carer’s care on return to France.
[68] As to [61](c), it was common ground that the parties would not be living in the same home (that is this factor was not missing from the Court’s assessment).40 This factor was of little significance because the future risks being assessed were not connected to a premise of the parties living in the same home.
[69] As to [61](d), this factor was also not contested and not missing from the Court’s assessment. Again, however, it was of little relevance to the risks that were advanced by the respondent.
[70] Finally, as far as [61][e] is concerned, the Court considered this factor but noted that, despite obtaining that assistance, her condition deteriorated.41
38 For example in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012], 1 AC 144 at [41]; Re IG (Child Abduction: Habitual Residence: Article 13(b)) [2021] EWCA Civ 1123 at [14], [53]–[54] and [66]; and KMA v Secretary for Justice [2007] NZCA 223, [2007] NZFLR 891 at [61].
39 Judgment, above n 1, at [198].
40 At [143].
41 At [156] and [202].
[71] In summary, the Court considered protective measures in relation to this grave risk but concluded there were no effective measures available — in part due to the nature of the risks, and in part due to the position adopted by the applicant in relation to withholding support.
Is the intended appeal one of sufficient importance?
[72] The applicant submitted the grounds of appeal raise issues of significant public and private importance.
[73] LRR v COL was granted leave to the Court of Appeal because the Court had not considered the principles governing the “grave risk” defence since A v Central Authority for New Zealand which was decided in 1996.42 That was what was required to elevate that appeal to such importance as to warrant a third court considering it.
[74] In Summer v Green, the Court of Appeal recently declined leave to an applicant seeking to appeal a Hague Convention High Court decision where the “grave risk” defence was relied on. The Court of Appeal found that:43
The applicant’s contention that a different conclusion should have been reached would necessitate a fresh assessment of all that evidence for a third time. That is not the Court’s role on a second appeal.
[75] Rather than challenging the High Court’s articulation of the LRR v COL principles, the applicant in that case sought to relitigate the factual issues and there was no identifiable basis of any serious question of law.
[76] Mr van Bohemen submitted that a reassessment of the facts is the essential contention of the applicant’s submissions in the instant case, and therefore no aspect of public importance is raised by the proposed appeal.
[77] Given the test applied by the Court was that articulated in LRR v COL, the method of approach to the evidence was orthodox, and the fact that protective
42 LRR v COL [2019] NZCA 248 [leave decision], citing A v Central Authority for New Zaland
[1996] 2 NZLR 517 (CA).
43 Summer v Green, above n 4, at [16].
measures were considered, there is no question of law arising that necessitates a second appeal.
Private importance
[78] In response to the submission made by Mr Sutton that the effect of the Judgment will be to sever the children’s relationship with the applicant, Mr van Bohemen submitted this submission is legally and factually wrong because:
(a)the legal consequence of the Judgment is that the children will not be sent back to France and the courts in New Zealand have jurisdiction; and
(b)the practical effect of the Judgment on the relationship between the applicant and the children depends on the parties. The respondent is committed to maintaining that relationship. Indeed, Mr Sutton conceded that the children are in regular contact with the applicant. The applicant is a person of considerable financial means who could both travel to New Zealand regularly to be with his children and also fund their travel to and from France to be with him.
Summary
[79] The proposed appeal is akin to that considered by the Court of Appeal in G v G, one which does:44
… not identify any question of law that requires consideration by this Court
... [nor] any respect in which the law needs to be clarified. Rather, the arguments ... relate to the way in which the courts below assessed the facts in this case, and applied the law to those facts.
[80] The requirements of justice weigh against leave being granted because there is no question capable of bona fide and serious argument which involves an interest of sufficient importance to outweigh the cost and delay of the intended appeal.
44 G v G, above n 3, at [18].
Result
[81]The application for leave to appeal is declined.
[82]Costs are awarded on a 2B basis.
Doogue J
Solicitors:
Malley Co, Christchurch
Parry Field Lawyers, Christchurch CC:
S van Bohemen, Christchurch J Wren, Christchurch
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