Rossi v Rossi
[2023] NZHC 3006
•27 October 2023
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-1527
[2023] NZHC 3006
UNDER the Care of Children Act 2004 IN THE MATTER
of an appeal to the High Court against
a decision of the Family Court at Auckland
BETWEEN
MARY ROSSI
Appellant
AND
MARIO ROSSI
Respondent
Hearing: 24 October 2023 Appearances:
I M Blackford for the appellant
A E Ashmore and Z F Stowers for the respondent V A Crawshaw KC as lawyer for the child
Date of judgment:
27 October 2023
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 27 October 2023 at 11.30am.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
Vivienne Crawshaw KC, Auckland Inger Blackford, Barrister, Auckland Alex Ashmore, Barrister, Auckland Tompkins Wake, Auckland
ROSSI v ROSSI [2023] NZHC 3006 [27 October 2023]
[1] The mother appeals the 25 July 2023 decision of Judge D A Burns in the Family Court at Auckland, granting the father’s application under s 105 of the Care of Children Act 2004 (the Act) for return of the child to the child’s ‘habitual residence’ in the United Kingdom.1 She contends the child has no habitual residence.
Background
[2] The mother is a New Zealander; the father Italian. The mother and father lived in the United Kingdom, where the child was born in October 2017. The family moved to Italy in September 2021. They returned to the United Kingdom in November 2022, where they stayed until travelling to New Zealand in December 2022 on tickets for return to the United Kingdom in mid-February 2023.
[3] With the father’s agreement, the mother’s and child’s tickets were changed for return to the United Kingdom at the end of February 2023, when the parents intended to house sit in France for five weeks. The father returned to the United Kingdom in mid-February 2023 as originally ticketed. On his arrival in the United Kingdom, the mother informed him she intended to stay with the child in New Zealand. The father then travelled to his family in Italy.
[4]The Family Court proceeding followed.
Applicable law
[5]Section 105 relevantly provides:
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
1 [Rossi] v [Rossi] [2023] NZFC 7827, anonymised consistently with the present judgment.
(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.
[6] The only point at issue was if (and, on appeal, the Judge erred in finding) the child was “habitually resident” in the United Kingdom at the time immediately before he was removed or retained from it. Section 105(1)’s criteria otherwise are made out, and none of s 106’s grounds to refuse making an order under s 105(2) applies.
[7] The test for ‘habitual residence’ on a child’s removal from a state in breach of custodial rights “is a factual one, dependent on the combination of circumstances in the particular case”,2 to “reflect the underlying reality of the connection between the child and the particular state”.3 Nonetheless, it may be determined by reference to particular concepts or “principles”.4 Important among them is “settled purpose” — when to be attributed to a young child, its caregivers’ objectively manifested intention
— to reside in a particular state,5 coupled with a meaningful period of actual residence.6 The inquiry is to take into account “all relevant factors”, as may include:7
… the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration.
But if such residence then qualifyingly is habitual remains to be determined in the particular circumstances.8 And it is possible to have no habitual residence.9
[8] The rationale not only is to deter a child’s removal or retention from the country of their habitual residence “but also (and importantly) to ensure that it is the state
2 Punter v Secretary for Justice [2007] 1 NZLR 40 (CA) at [130].
3 At [88], quoting SK v KP [2005] 3 NZLR 590 (CA) at [22] per McGrath J.
4 At [188], endorsing SK v KP, above n 3, at [72] (endorsing Punter v Secretary for Justice as the New Zealand Central Authority [2004] 2 NZLR 28 (CA) at [66]–[86]).
5 Punter v Secretary for Justice as the New Zealand Central Authority, above n 4, at [70]–[71].
6 At [85].
7 Punter v Secretary for Justice, above n 2, at [88].
8 Punter v Secretary for Justice as the New Zealand Central Authority, above n 4, at [86].
9 At [75]. See also Punter v Secretary for Justice, above n 2, at [129].
where the child has the most personal ties that will decide custody and access disputes related to that child”.10 Appropriate domestic determination and enforcement of custodial rights are the foundation of the prohibition.11
Judgment under appeal
[9] The Judge had “no difficulty” in finding the child’s habitual residence “for the first four to four and a half years of his life was the United Kingdom”.12 He was satisfied it remained so notwithstanding the family’s time in Italy, pointing to specific indicators of their continuing connection to residence in the United Kingdom and subsequent disconnection with residence in Italy, which convinced him “the parties intended to retain the United Kingdom as their child’s habitual place of residence”.13 Alternatively, the Judge was satisfied “the parties reached a consensus that the child’s habitual place of residence would revert to the United Kingdom” after they left Italy and returned to the United Kingdom;14 “on the evidence a mutual decision on leaving Italy and on arrival in the [United Kingdom] to re-establish the [United Kingdom] as [the child’s] place of habitual residence”.15 Either scenario was consistent with the child’s likely “sense of habitual residence as being the United Kingdom”.16 The Judge therefore ordered the child’s return to the United Kingdom.
[10] For the mother, Inger Blackford contends the Judge made nine particular errors of fact, which individually and in combination undermine his finding of the parents’ purpose. And she argues the Judge’s approach erred in law by giving too much weight to that (disputed) purpose at the expense of any real connection to the United Kingdom had by them or the child, and improperly and irrelevantly finding the mother to be in breach of her guardianship obligations to consult with the father on any change to the child’s habitual place of residence.
10 Punter v Secretary for Justice, above n 2, at [17].
11 Hague Convention on the Civil Aspects of International Child Abduction 1980, art 3 and Care of Children Act 2004, s 97. See also Punter v Secretary for Justice, above n 2, at [182].
12 [Rossi] v [Rossi], above n 1, at [14].
13 At [19].
14 At [20].
15 At [30].
16 At [34], final bullet.
[11] For the father, Alex Ashmore says none of the contended errors substantively detracts from the Judge’s correct conclusion the United Kingdom was the child’s habitual residence. He points out the decision is for forum identification in terms of Hague Convention procedures, rather than any domestic rights determination. For the child, Vivienne Crawshaw KC reports her interview with him, while querying the appropriateness of giving his views any particular weight, especially given the identified risks of their expression from parental influence.
Approach on appeal
[12] Section 143 entitles any party to proceedings under the Act in the Family Court (or child to whom the proceeding relates) to appeal to this Court against (among other things) the Family Court’s making of an (other than interlocutory or interim) order.
[13] The appeal is a general appeal by way of rehearing,17 in which the appellant bears the onus of satisfying me I should differ from the Family Court’s decision. I only am justified in interfering with that decision if I consider it is wrong — in other words, the Judge erred.18
[14] I then am to come to my own assessment of the merits of the case afresh, without deference to the Family Court (save for some caution in differing on witness credibility, when I have not had the advantage of observing the witnesses).19 I may rely on the Family Court’s reasons in reaching my own conclusions, but the weight I give those reasons is a matter for me.20
[15] After hearing the appeal I may make any decision I think should have been made, or direct the Family Court to rehear the proceeding or consider and determine any particular matter.21
17 High Court Rules 2016, r 20.18.
18 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].
19 At [13].
20 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].
21 High Court Rules, r 20.19(1).
Analysis
[16] As I have explained,22 a child habitually resides in a country if that is where s/he may objectively be expected — principally by dint of duration and (usually, custodians’) resolve, but other factors also may be relevant — to stay or return for custodial purposes but for his or her removal or retention. For the child at issue here, I see no error in the Judge’s conclusion the country is the United Kingdom.
[17] The Judge’s statement of “the first four to four and a half years of [the child’s] life” is to refer back to his observation of the parents’ different contentions as to the duration of their occupation of rental accommodation in London.23 It is not a mathematical calculation. It is the Judge’s factual finding — for that period, whatever its precise duration — the child’s initial habitual residence was in the United Kingdom. The Judge’s attribution of that settled establishment as desirable for the mother’s “natural need” is immaterial.24
[18] If the facts on which the Judge expressly relied for the United Kingdom remaining the child’s habitual residence after the family’s relocation to Italy are “light” (as I described them at the hearing), and in one instance (of storing furniture with friends in the United Kingdom)25 accepted to be wrong, the other facts nonetheless are contributory to the Judge’s express finding of the parents’ objective “settled purpose”.26
[19] That finding was based more in the Judge’s comprehension of the family’s movements all as being from and to the United Kingdom, up until the point of the child’s retention coincidentally with his parents’ separation on the father’s return to the United Kingdom. None of the facts individually or in combination is determinative of that conclusion, which is the exercise of the Judge’s overall assessment. It was an assessment open to him to make from the facts as he found them. That some contributory facts — for example, of the child’s own ties to, or the degree of his
22 At [7] above.
23 See [Rossi] v [Rossi], above n 1, at [13(d)].
24 At [15].
25 At [19(e)].
26 At [23].
assimilation into, the United Kingdom — were of lesser or even countervailing weight does not undermine the Judge’s overall assessment.
[20] I reject the mother’s contention the family “lived a nomadic and international lifestyle”. Instead — from the United Kingdom, prior and subsequent to their relocation to Italy — they travelled extensively, including to Italian and New Zealand families (whether in New Zealand or Italy). None diminishes the United Kingdom as the country to which the child was to return as his habitual residence.
[21] The Judge alternatively found, if the family’s relocation to Italy was such as to terminate the child’s habitual residence in the United Kingdom, his parents’ restoration of links to the United Kingdom and the family’s actual and intended return there sufficiently re-established it. Thus the Judge cannot be said to have erred in disregarding the family’s relocation to Italy.
[22] The family’s actual return to and stay in the United Kingdom from Italy in late 2022, and their arrangements again to return there after trips to New Zealand and France in early 2023, together provide a foundation for the Judge’s conclusions the child habitually resided in the United Kingdom at the time the family departed for New Zealand, whether or not broken by the family’s time in Italy. The Judge made the point, objectively speaking, nothing changed in that ‘settled purpose’ until the father returned to the United Kingdom, when the mother proposed to retain the child in New Zealand.27 Up until that point, the father was ‘actually exercising’ his rights of custody over the child, including by permitting the child’s later travel with the mother to return to the United Kingdom.
[23] The Judge plainly made an objective assessment from all the evidence before him, rather than giving any particular weight to the parents’ subjective expression of intention. I do not accept the Judge was required, as Ms Blackford contends, to “[balance] the joint parental intention and [the child’s] views”. The contention comes close to an improper welfare consideration in assessment of habitual residence.
27 At [24]–[30].
[24] The Judge found the child’s views confirmatory of, rather than contributing to, his conclusion.28 If that was to overlook lawyer for child’s warning of parental influence, the child’s views were not a factor in the Judge’s assessment of the child’s habitual residence. Neither was the Judge’s commentary on the mother’s guardianship,29 which served instead to illustrate any objectively-assessed ‘settled purpose’ of the child’s habitual residence could not be changed by the mother’s unilateral decision to remain in New Zealand.
[25] In my view, at the point immediately before the child’s retention by the mother in New Zealand, the reality of the child’s residence was his connection to the United Kingdom and sufficiently in actuality to constitute as being habitual. Any objective assessment at that time would have him return to the United Kingdom for custodial purposes. The Judge did not err.
Additional evidence on appeal
[26] Both parties sought to adduce additional evidence on appeal: the mother, the parties’ Italian language two-year tenancy agreement (and English translation) to illustrate their intended time in Italy was not dictated by the father’s one-year employment; the father, return tickets between the United Kingdom and France for the purposes of the intended house-sit in dispute of a submission on behalf of the mother none existed. I expressed a preliminary view at the hearing neither should be admitted.
[27] I may grant leave only if there are “special reasons” for hearing the evidence.30 Neither is fresh or cogent evidence relevant to any matter in dispute. On its face the tenancy agreement was terminable by the parties on notice, as occurred in anticipation of cessation of the father’s employment. The agreement does not illustrate the parties’ commitment to residence in Italy such as may be effective to contradict any habitual residence in the United Kingdom. The mother’s submission as to return tickets, in exercise of advocacy rather than instruction, was withdrawn.
28 At [35]–[36].
29 At [32].
30 High Court Rules, r 20.16(3); B v A [2020] NZHC 580, (2020) 26 PRNZ 58 at [25].
[28] I confirm my preliminary view I would not admit the sought additional evidence. There is no special reason for hearing the evidence.
Result
[29]The appeal is dismissed.
Costs
[30] In my preliminary view, from what I presently know — as the unsuccessful party in this averagely complex proceeding requiring counsel of average skill and experience, and in which a normal amount of time is considered reasonable for each step on the application — the mother should pay 2B costs and disbursements to the father. I would allow for second counsel as part of the proceeding’s ‘average’ characterisation.
[31] If my view is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on short memoranda each of no more than five pages
— annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate — to be filed and served by the father within ten working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.
—Jagose J
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