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Simpson v Hamilton

Simpson v Hamilton

Case [2020] NZSC 42 4 May 2020

Hague Convention on the Civil Aspects of International Child Abduction

International Child Abduction

Child Custody

International Child Return

Discretionary Exceptions in Child Return Cases

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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, PLEASE SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 141/2019
[2020] NZSC 42

BETWEEN	SIMPSON Applicant
AND	HAMILTON Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	Applicant in person A E Ashmore for Respondent
Judgment:	4 May 2020

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr Simpson (Mr S) and Ms Hamilton (Ms H) are the parents of Anna, currently aged 12.[1] They are all German nationals, as is Mr Hamilton (Mr H), Ms H’s current husband.
[1]Simpson, Hamilton and Anna are not the parties’ real names but were used in the High Court and Court of Appeal to comply with the publication restrictions in s 139 of the Care of Children Act 2004. We use Anna throughout this judgment and Simpson and Hamilton in the intituling.
Ms H unlawfully abducted Anna from Germany in November 2014 and brought her to New Zealand on 23 January 2015. It was not until nearly two years later that Mr S discovered Anna was in New Zealand.
Mr S then informed the German Central Authority, which made a formal request to the New Zealand Central Authority for Anna’s return to Germany. An application was then made for a return order under s 105 of the Care of Children Act 2004 (the Act). Subpart 4 of Part 2 of the Act (which includes s 105) implements the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).[2]
[2]Convention on the Civil Aspects of International Child Abduction 1343 UNTS 98 (opened for signature 25 October 1980, entered into force 1 December 1983).
In a judgment delivered on 1 September 2017, the Family Court declined to make an order for Anna’s return.[3] Mr S’s appeal from the Family Court judgment was dismissed by the High Court in a judgment delivered on 18 May 2018.[4] Leave to appeal to the Court of Appeal was granted on 26 February 2019.[5] Mr S’s appeal to the Court of Appeal was dismissed on 22 November 2019.[6]
[3][S] v [H] [2017] NZFC 69293 (Judge Coyle) [FC judgment].
[4][S] v [H] [2018] NZHC 1098 (Paul Davison J) (a results judgment). The reasons judgment followed a month later, see [S] v [H] [2018] NZHC 1365 (Paul Davison J) [HC judgment].
[5][S] v [H] [2019] NZCA 21 (Cooper and Gilbert JJ).
[6][S] v[H] [2019] NZCA 579, [2019] NZFLR 338 (French, Miller and Gilbert JJ) [CA judgment].
Mr S now seeks leave to appeal to this Court.

Background

The background is fully set out in the Court of Appeal judgment.[7]
[7]At [10]–[29] and [79]–[83].
For present purposes, it suffices to say that there had been a persistent pattern of breach by Ms H of German access orders in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Simpson v Hamilton

Details

AGLC: Simpson v Hamilton [2020] NZSC 42
Case: [2020] NZSC 42
Decision Date: 4 May 2020

CaseChat Overview and Summary

The applicant, Mr Simpson, sought leave to appeal against the Court of Appeal's decision not to order the return of his daughter, Anna, to Germany. The Court of Appeal had dismissed an appeal brought by Mr Simpson against a Family Court decision not to order Anna's return. The Court of Appeal had concluded that, while Anna was not settled in New Zealand at the time of the Family Court's decision, the intervening circumstances, including the 2017 school incident where Mr Simpson had forcibly removed Anna from her school, meant that a return order should not be made at that time. The Court found that, given the change in circumstances, the significant risks to Anna's mental health and future development that would be hazarded by a return order could not be justified by any prospective benefit in terms of the Convention or otherwise.

Mr Simpson argued that the Court of Appeal had erred in not ordering Anna's return to Germany. He submitted that the Court of Appeal should have made an order for Anna's return to Germany under section 105 of the Care of Children Act 2004 because no defences were available under section 106 of the Act. He submitted that, if Anna was in a fragile and vulnerable state, she could not be regarded as settled in New Zealand. He also argued that Anna's views objecting to being returned to Germany should have been discounted because they were influenced by her mother. Mr Simpson further submitted that the Court of Appeal did not evaluate and weigh the different criteria in the best interests balancing test correctly. He submitted that the Court did not give proper weight to the fact that he is the parent with the better and more stable parenting skills.

The Court found that Mr Simpson's arguments did not have sufficient prospects of success to justify granting his application for leave to appeal. The Court of Appeal had correctly identified the law in Hague Convention cases and applied it to the circumstances of this case. The Court noted that the Court of Appeal had considered the intervening circumstances, including the 2017 school incident, and had concluded that the significant risks to Anna's mental health and future development that would be hazarded by a return order could not be justified by any prospective benefit in terms of the Convention or otherwise. The Court found that Mr Simpson's application for leave to appeal did not raise any issue of general or public importance, nor did it suggest a risk of a miscarriage of justice. The Court therefore dismissed Mr Simpson's application for leave to appeal and made no order as to costs.

Orders