Simpson v Ministry of Justice
[2023] NZHC 28
•26 January 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-279
[2023] NZHC 28
UNDER The Care of Children Act 2004 IN THE MATTER
of a decision of the Ministry of Justice New Zealand, Central Authority regarding article 21 of the ‘The Hague Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction’ (Section 113 ‘Care of Children Act 2004’, New Zealand)
BETWEEN
SIMPSON
Applicant
AND
MINISTRY OF JUSTICE
Respondent
Hearing: On the Papers Counsel:
Applicant in Person
K Laurenson and R McMenamin for Respondent
Judgment:
26 January 2023
JUDGMENT OF McQUEEN J
[1] The applicant, Mr Simpson, is the father of a child, “Anna”1. Anna was born on 3 July 2007. She was unlawfully abducted by her mother, Ms Hamilton, and brought to New Zealand in 2015, when she was seven years old. Anna and her parents are German nationals. A German court had awarded Mr Simpson sole custody of Anna. Since 2016, when Mr Simpson discovered that Anna was located in New Zealand, he has taken numerous steps in an effort to obtain care of or access to her. Family Court
1 I refer to the child as Anna, the father as Mr Simpson and the mother as Ms Hamilton, consistent with the approach taken in other related proceedings. See [Simpson] v [Hamilton] [2017] NZFC 6923; Simpson and Hamilton [2018] NZHC 1098; Simpson and Hamilton [2018] NZHC 1365; and Simpson v Hamilton [2019] NZCA 579, [2019] NZFLR 338.
SIMPSON v MINISTRY OF JUSTICE [2023] NZHC 28 [26 January 2023]
proceedings in relation to parenting orders remain underway. The evidence before me indicates that Anna presently remains in New Zealand in the day-to-day care of her mother.
[2] In this proceeding, Mr Simpson has applied for judicial review of a decision of the New Zealand Central Authority (the Central Authority).2 The Central Authority decided not to proceed with an application by Mr Simpson under Article 21 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the Hague Convention). That application was a request for arrangements for organising or securing the effective exercise of rights of access.
[3] The Central Authority opposes the application for judicial review. Both parties have filed affidavits and written submissions. They have agreed that the application may be dealt with on the papers.
Background
[4] The detailed background to the abduction of Anna to New Zealand is discussed in earlier judgments of the Family Court, this Court and the Court of Appeal.3 I do not repeat that background here but record the events particularly relevant to the current application.
[5] In December 2016, soon after Mr Simpson found out that Anna was living with her mother in New Zealand, the German Central Authority made a request to the Central Authority for Anna’s return to Germany. In February 2017, an application was filed in the Family Court for Anna to be returned to Germany under s 105 of the Care of Children Act 2004 (the Act). On 1 September 2017, the Family Court declined to make the order sought (the Hague Convention return decision).4 On 28 September
2 Article 6 of the Hague Convention provides that a Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. The Secretary of Justice is New Zealand’s Central Authority. The affidavit of Patricia Anne Bailey, Manager of the Central Authority, confirms that the Ministry of Justice employs Ms Bailey to discharge the duties and functions bestowed on the Secretary of Justice under the Hague Convention. The statement of claim refers to both the Ministry of Justice and the Central Authority, but I refer to the Central Authority in this judgment.
3 See [Simpson] v [Hamilton] [2017] NZFC 6923; Simpson v Hamilton [2018] NZHC 1365; and
Simpson v Hamilton [2019] NZCA 579, [2019] NZFLR 338.
4 [Simpson] v [Hamilton] [2017] NZFC 6923.
2017, Mr Simpson forcibly uplifted Anna from her school in New Zealand.5 On the same day, the Family Court granted an interim parenting order giving Ms Hamilton day-to-day care of Anna and issued a warrant to uplift Anna and return her to Ms Hamilton.
[6] Mr Simpson appealed the Hague Convention return decision to the High Court and Court of Appeal. The Court of Appeal’s judgment of 22 November 2019 held that the Family Court was wrong to decline the order for Anna’s return to Germany.6 However, it nonetheless did not overturn the Family Court’s decision given developments that had occurred since.7
[7] Mr Simpson continued to seek contact with Anna by taking various steps in the Family Court in relation to the 2017 interim parenting order. These steps are described in the High Court decision relating to Mr Simpson’s previous judicial review application and a Family Court decision dated 13 June 2022.8 They included the provision of counselling for Anna as she was suffering post-traumatic stress following the forcible uplift by Mr Simpson. A s 133 psychological report was sought. Mr Simpson lodged a complaint against the psychologist appointed to prepare the s 133 report and sought leave to appeal on a number of matters. He sought therapy for Anna to support her to re-establish her relationship with him, so as to facilitate contact. He also sought orders for costs in relation to his travel and the s 133 report. He made new applications for a parenting order and for a contact order. Mr Simpson also applied for the Family Court Judge then dealing with the proceedings to recuse himself.9
[8] Of particular note is that in December 2020, Mr Simpson filed an application in this Court for judicial review of the Family Court interim parenting order. In that proceeding, Brewer J appointed amicus curiae for the purpose of giving Anna the opportunity to have her views put before the Court. His Honour declined the
5 Simpson v Hamilton [2019] NZCA 597 at [79].
6 The Supreme Court dismissed Mr Simpson’s application for leave to appeal the Court of Appeal’s judgment: Simpson v Hamilton [2020] NZSC 42; [2020] NZFLR 37.
7 Above n 5, at [77]–[84] and [96] – where the majority of the Court and Miller J discuss the profound effect of the forcible uplift on Anna’s mental health.
8 Simpson v Family Court at Tauranga & Hamilton [2021] NZHC 2601; and [Simpson] v [Hamilton] [2022] NZFC 4896.
9 Judge Coyle recused himself on his own motion. See [Simpson] v [Hamilton] [2022] NZFC 4896 at [24].
application for judicial review on 30 September 2021.10 In his judgment, Brewer J recorded the view reached by the amicus that:11
In summary, [Anna] does not wish to have contact with her father, does not wish to live with him and is tired of repeating her views for ongoing Court proceedings when they do not appear to be listened to or respected by [Mr Simpson]. [Anna] has a full and busy life, and she is excelling in all that she applies herself to.
[9]Brewer J concluded that:12
This case is an example of the wrong that can be done to a parent and a child when one parent unlawfully takes the child and flees to another jurisdiction with the aim of depriving the other parent of contact with the child. However, Mr Simpson is not blameless. His abduction of Anna from her school was very ill-advised and has contributed greatly to his loss of contact with Anna, and to her loss of contact with him. The sad fact is that Anna has grown to her present age alienated from her father. Mr Simpson should reflect on Anna’s position
…, particularly the summary quoted [at para [8] above]. The practical position is that at age 14, Anna is the one who will decide who she lives with and who she has contact with. In less than two years any parenting order will expire. Anna can be persuaded, but not compelled.
[10] In November 2021, the Family Court directed that Mr Simpson provide the Court with some clarity about what he wished to achieve in respect of contact with Anna. He had the opportunity to file affidavit evidence about this, together with how he was going to progress his applications before the Court and his plans to travel to New Zealand (bearing in mind the restrictions on travel to New Zealand in the context of COVID-19).
[11] In April 2022, Mr Simpson sought the recusal of Judge Cook, the Family Court Judge then dealing with the parenting order proceedings. This application was declined in June 2022.13 According to the Central Authority’s submissions, dated 3 October 2022, Mr Simpson has appealed against that decision and no further directions have been made by the Family Court to progress matters.
[12] Mr Simpson has also made a communication (complaint) to the United Nations Human Rights Committee alleging a breach of articles 23(1) and (4) of the
10 Simpson v Family Court at Tauranga & Hamilton [2021] NZHC 2601.
11 At [42].
12 At [70].
13 [Simpson] v [Hamilton] [2022] NZFC 4896.
International Covenant on Civil and Political Rights (ICCPR). New Zealand did not accept that Mr Simpson had standing to bring the complaint on Anna’s behalf and objected to the admissibility of the complaint given domestic remedies had not been exhausted in respect of the Family Court parenting order proceedings. On the merits, New Zealand said articles 23(1) and (4) of the ICCPR had not been breached. The Committee’s views remain reserved at this time.
Hague Convention access application
[13] On 25 March 2021, the Central Authority received an application from Mr Simpson under the Hague Convention to secure rights of access to Anna (the Hague Convention access application). This application is the subject of the present case.
[14] Ms Bailey, the Manager of the Central Authority, states in her affidavit that the role of the Central Authority is to monitor individual cases for compliance with Hague Convention obligations. She goes on to say that the Central Authority does this by engaging counsel to act for an applicant, co-operating and communicating with the Central Authority in the requesting State to keep them informed about the case, and providing information about law and procedure. In keeping with this approach, the Central Authority appointed a barrister, Ms Soljan, to act for Mr Simpson in relation to his Hague Convention access application.
[15] In a letter dated 22 April 2021, Ms Soljan advised Mr Simpson that she considered he was eligible to make an application under the Hague Convention for enforcement of his rights of access to Anna. Ms Soljan also indicated that “the purpose of the application would be to try to force the Family Court to make a prompt and robust decision to enable you to see [Anna]”. She observed that an application under the Hague Convention could not be used to seek summary enforcement of the existing German custody order in Mr Simpson’s favour, rather the Family Court would have to assess what would be in Anna’s best interests and welfare at the time of the Hague Convention access application.
[16] It appears that the gist of Ms Soljan’s advice was conveyed to Mr Simpson earlier in April by Ms Bailey, as on 14 April 2021, Mr Simpson requested that the
Hague Convention access application be “adjourned”. He gave several reasons for this, including that he was pursuing a judicial review claim, and the complaint to the United Nations. Ms Bailey replied to this email on 22 April, attaching Ms Soljan’s letter of advice and asking for his confirmation as to whether he wished to proceed with the Hague Convention access application.
[17] It was not until 30 September 2021 that Mr Simpson replied to Ms Bailey, indicating that he wished to proceed with the Hague Convention access application. This is the same date on which the High Court decision declining Mr Simpson’s application for judicial review of the interim parenting order made in the Family Court was delivered.14 Ms Bailey replied on 6 October, advising that further advice from Ms Soljan would be required given the passage of time and the delivery of the judicial review decision. Ms Bailey asked Mr Simpson to update her about any recent developments in the Family Court proceedings and to provide her with his proposal for contact with Anna. This was important given Anna’s age and views on contact with him, and the practical necessity to persuade her to engage with him rather than have visits imposed on her.
[18] Mr Simpson confirmed on 13 October 2021 that he did wish to proceed with the Hague Convention access application. The following day, Ms Bailey wrote to Mr Simpson advising that she still needed the information requested earlier, particularly regarding a proposal for contact with Anna. Mr Simpson replied on 15 October, reiterating his concerns about the response of the New Zealand authorities to his efforts to have care of or access to Anna. Ms Bailey’s evidence is that in late October, she requested further advice from Ms Soljan on whether the grounds were met to accept an application for access by Mr Simpson. This advice was delayed in its provision. The German authorities sought updates from Ms Bailey in early 2022. Ms Bailey replied in March and April 2022, apologising for the delay in receiving the independent legal advice due to complications arising from the COVID-19 pandemic.
14 See above n 10.
[19] Ms Soljan’s further advice was received on 20 April 2022. Ms Soljan advised that the Central Authority no longer had a role to play in the matter. The three reasons for her conclusion were:
(a)Mr Simpson had other remedies available to him, specifically, seeking access through Family Court proceedings.
(b)The application under the Hague Convention had no reasonable prospects of success because the Court must take Anna’s views into account, her age, and the fact that she had made her views clear (most recently in the context of the 2021 judicial review proceeding) that she would not agree to contact with Mr Simpson. In these circumstances, the likelihood of a Court issuing a warrant to uplift Anna to enforce contact was close to zero.
(c)Mr Simpson had not put forward any practical proposals for how contact with Anna could actually occur.
[20] On this basis, Ms Bailey, as manager of the Central Authority, refused Mr Simpson’s request for assistance to make an access application on the basis that such an application would not be well-founded in terms of s 123 of the Act. Section 123(1) provides that:
Nothing in this subpart requires the Authority to take any action in respect of an application if it is manifest—
(a)that the requirements of the provisions of this subpart that are applicable to the application have not been fulfilled or complied with; or
(b)that the application is otherwise not well founded.
[21] That section goes on to provide that if the Authority refuses to take any action in respect of an application, a person ‘aggrieved’ by that refusal may appeal to the District Court or the Family Court against that refusal.15 On an appeal to the District Court or Family Court, the Court may:16
15 Section 123(3).
16 Section 123(4).
(a)make any order the Court considers just; or
(b)refer the matter back to the Central Authority with directions to reconsider the whole or a specified part of the matter.
[22] Any decision made by the District Court or the Family Court in such an appeal is final.17 There do not appear to be any reported decisions where the right of appeal contained in s 123(3) has been exercised. The alternative (as is the situation in the present case), is an application for judicial review of the Central Authority’s decision.18 Likewise, I have been unable to identify any relevant case law where this approach has been adopted.
Judicial review claim
[23] Mr Simpson’s statement of claim seeks judicial review on the following grounds:
(a)In its decision not to proceed with an application under Article 21 of the Hague Convention, the Central Authority acted unlawfully in:19
(i)failing to consider the findings of the New Zealand courts regarding Anna’s best interests,
(ii)failing to consider the findings of the New Zealand courts that it was in the best interests of Anna to have a relationship with both her parents,
(iii)considering Anna’s view, given that it is alienated, influenced and manipulated;
(b)The ten-month delay of the Central Authority in making a decision about whether to proceed with an application under Article 21 and the
17 Section 123(5).
18 See Judicial Review Procedure Act 2016, s 20; and Senior Courts Act 2016, s 56.
19 Article 21 is implemented by s 113 of the Act.
matters taken into account in the decision constitute procedural impropriety; and
(c)The Central Authority’s decision not to proceed with an application under Article 21 is unreasonable given comments by the New Zealand courts about the need for Anna to have a relationship with her father and that Mr Simpson is the more suitable parent, Anna’s alienation from her father, the delays in Family Court proceedings relating to parenting orders, and the Central Authority’s failure to work with Anna as an alienated child.
[24]Mr Simpson seeks the following relief under each ground:
(a)The Central Authority must accept and proceed with his application for “request for arrangements for organising or securing the effective exercise of rights of access” under Article 21 of the Hague Convention; and
(b)Damages from the State of New Zealand for the costs of proceedings in New Zealand and compensation for loss of contact with Anna from February 2017 to May 2022 because of the failure of Immigration New Zealand;20 and
(c)Costs.
The ground of unlawfulness
[25] Mr Simpson advances three bases on which he says the Central Authority has acted unlawfully.
[26] Those bases relate to the reliance on Anna’s alienated views and alleged failures to take into account the New Zealand courts’ findings as to Anna’s best
20 In reliance on the judgment of the Court of Appeal in Simpson v Hamilton [2019] NZCA 579, [2019] NZFLR 338 at [16], [23], [51], and [93].
interests, including that her best interests involve having a relationship with both her parents.
Anna’s views
[27] Mr Simpson submits that the Central Authority was aware that at all relevant times, Anna was opposed to her return to Germany to see her father. However, he says this view was caused by her alienation from him and that no steps were taken for Anna to be given correct information, or for him to have an opportunity to speak with her. He says that Anna has been interviewed eleven times in relation to seeing him and returning to Germany and in none of these interviews were her erroneous beliefs corrected. For this reason, Mr Simpson submits that Anna has no independent view of her own and her alienated view does not represent her best interests. Given this situation, Mr Simpson submits that it was unlawful for the Central Authority to rely on Anna’s view as a reason not to support Mr Simpson’s access application.
[28] I can understand the frustration Mr Simpson feels in relation to the views Anna holds about him and how those views have been formed and maintained over the years. Mr Simpson cites numerous academic articles and international caselaw in support of the challenges posed in situations where a child is alienated from a parent and I accept that the phenomenon of alienation is well-recognised.
[29] The difficulty in the present case is that Anna is now 15 and a half years old and has had no contact with her father for most of her life. Irrespective of the reasons for Anna’s alienation from Mr Simpson, the fact is that she does not wish to have contact with him. At her age (now only six months away from when any parenting order will expire), any order for access could not realistically be enforced against her wishes. I agree with Ms Soljan’s view that the courts would not issue a warrant to uplift Anna to have contact with Mr Simpson in these circumstances. These concerns were highlighted by Brewer J in his judicial review decision and have only become more acute with the passage of time.21
21 Above n 10, at [70].
[30] In these circumstances, I accept that it was open to the Central Authority to consider Anna’s views in assessing whether an application for access was well- founded. I conclude also that the Central Authority’s consideration of Mr Simpson’s application is a matter to which s 6 of the Act applies. In respect of proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with a child, that child must be given reasonable opportunities to express their views on those matters, and those views must be taken into account.22 Applications directed to obtaining rights of access or contact with a child fall within the ambit of s 6. In the present circumstances, Anna’s views were a relevant consideration for the Central Authority. Section 6 is intended to give effect to New Zealand’s international obligations pursuant to art 12 of the United Nation Convention on the Rights of the Child, which provides:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
[31]The Court of Appeal has recently emphasised the importance of:23
…the child’s right to express their own authentic views on matters that affect them, and to have the views they express taken into account. Ensuring that children are supported to exercise that right is an essential corollary of treating their welfare and best interests as a paramount consideration.
[32]This leads me to a consideration of Anna’s welfare and best interests.
[33] The welfare and best interests of Anna are at the heart of decisions about her care and contact arrangements, as is generally required by s 4 of the Act. I accept that Anna’s welfare and best interests are not necessarily the paramount consideration in the context of a return application.24 However, my view is that Anna’s welfare and best interests remain paramount where s 113 of the Act is engaged in relation to contact with or access to her.
22 Section 6(2).
23 Newton v Family Court at Auckland [2022] NZCA 207 at [229].
24 See s 4(4)(a) – which provides that the paramountcy principle is not intended to limit subpt 4 of pt 2 of the Act, which implements the Hague Convention.
[34] The majority of the Supreme Court in Secretary for Justice v HJ stated (in respect of a previous version of the Act):25
Section 4(7) does not provide that the paramountcy principle “shall not apply” to subpart 4 of Part 2. But, on the other hand, to allow the paramountcy principle to mandate the answer to a s 106(1)(a) question would amount, in context, to a limiting of the discretion vested in the court by that provision. Once a case moves from s 105 to s 106 the principle is relevant but it must not be applied so as to limit the s 106 discretion. The statutory direction in s 4(7) can only be construed as requiring the court to have regard to the welfare and best interests of the particular child in a manner that is not inconsistent with the policies and purposes of the Convention
[35]And further:26
The discretion requires the judge to compare and weigh two considerations. One concerns the welfare and best interests of the child or children involved in the case. The other concerns the significance of the general purpose of the Convention in the circumstances of the case. These two considerations will not necessarily be in conflict.
[36]Or in other words:27
Even if the Court determines that return is not in the child’s best interests, that is not necessarily the end of the matter. The Court must consider whether return should nevertheless be ordered to promote the objectives of the Hague Convention, for example to avoid perverse incentives created by rewarding concealment.
[37] That analysis applies in respect of a return application pursuant to ss 105 and 106 of the Act, which provide clear and detailed direction to a Court dealing with such an application. While the provision in s 4(4)(a) applies to the entirety of subpart 4, there does appear to be a distinction in terms of the considerations to be applied to ss 105 and 106, as compared to ss 110 and 113. Sections 105 and 106 are intended to give effect to New Zealand’s obligations under the Hague Convention, in respect of ensuring that children who are unlawfully removed from a contracting state are returned. In undertaking the analysis required by those sections, the policies and purposes of the Hague Convention itself must be relevant and are not to be limited by s 4.
25 Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289 at [49] per Tipping J.
26 At [85].
27 Above n 5, at [67].
[38] Applications to have contact with or access to a child are contemplated by ss 110 and 113. An application under s 110 comes into play following a refusal to make an order for the return of a child. Section 110, in my view, appears to enable a parent domiciled in another contracting state to employ the typical domestic processes for obtaining contact, that is, applying for an interim or final parenting order pursuant to ss 48 or 49 of the Act, following the failure of a return application. It also lacks the detailed direction provided by ss 105 and 106. An application under s 113 is not connected to an unsuccessful return application, rather it simply contemplates the Central Authority assisting in an applicant’s effective exercise of their rights of access. Section 113 also lacks any detailed direction, compared to ss 105 and 106. Once again, it seems to me that s 113 envisages the use of the typical domestic process for obtaining contact.
[39] It is not clear whether different considerations apply to an application under ss 110 or 113, as to applications for parenting orders and interim parenting orders under ss 48 and 49, in respect of which the welfare and best interests of a child are plainly paramount.28 The only difference between those two processes would appear to be that the Central Authority exists to provide assistance to a parent outside of New Zealand for the purpose of engaging in the domestic process. It might also be argued that the requirement in art 2 of the Hague Convention for “the most expeditious procedures available” may affect applications under ss 110 or 113, but as I have already noted, unlike for the return process, neither the Hague Convention nor the Act provide any specific timeframes for such applications.
[40] It is my view then, that Anna’s welfare and best interests should have been paramount in the Central Authority’s decision, because I consider that the orthodox considerations which apply to an application pursuant to s 48 and/or s 49 apply to an application under ss 110 or 113. Unlike the context of an application for the return of a child, where the Hague Convention has a purpose beyond the best interests of the child, it seems to me that questions of access can be consistently resolved whether sought purely as a domestic matter or pursuant to the provisions implementing the Hague Convention. Ensuring that Anna had exercised the right to express her views
28 See New Zealand Central Authority v Rhodes [2013] NZFC 4954 at [12] and [13].
and have them taken into account was an essential component of treating her welfare and best interests as a paramount consideration. Therefore, I am not satisfied that the Central Authority acted unlawfully in considering Anna’s views.
Failure to consider previous findings
[41] In his submissions, Mr Simpson cites several statements from the Court of Appeal’s decision in support of his contention that Anna’s welfare and best interests require that she have a relationship with him as her father. Mr Simpson then submits that as a result, the Central Authority’s decision not to proceed with the access application is unlawful because it fails to recognise that contact with him is in Anna’s welfare and best interests, as indicated by the Court of Appeal.
[42] I am not convinced that this is the case. The Court of Appeal decision was made in November 2019. Even at that date, the Court concluded that Anna could not be returned to Germany to her father given changes in the circumstances since the Family Court had wrongly declined to make a return order.
[43] The Court of Appeal anticipated that Mr Simpson would pursue access arrangements in order to establish contact with Anna. He has done so, by taking steps in the Family Court pursuant to the Act in relation to care and access, including under the provisions implementing the Hague Convention. However, any decision about Anna’s welfare and best interests must be made at the time the relevant application is heard, not simply in reliance on the conclusions in a judgment now more than three years old.
[44] While in principle, Anna’s contact with her father is desirable (as the Court of Appeal concluded29 and as is contemplated by s 5(2) of the Act), the Central Authority’s decision about whether a Hague Convention access application was well- founded must properly take into account Anna’s welfare and best interests at the time the application was being pursued. The Court of Appeal’s conclusions are not necessarily determinative of Anna’s welfare and best interests at that time. It is apparent to me that the Central Authority was well aware of the Court of Appeal
29 Above n 5, at [61] and [91].
decision at the time it decided that the Hague Convention access application was not well-founded. It would therefore have been aware that the Court of Appeal considered that it was in Anna’s welfare and best interests to have a relationship with her father. However, for the same reasons as discussed above, I consider that it was open to the Central Authority to conclude that despite the Court of Appeal’s comments, Mr Simpson’s Hague Convention access application was not well-founded. That decision was not unlawful.
[45] Mr Simpson’s claim that the Central Authority’s decision not to pursue the Hague Convention access application was unlawful is therefore not made out on any of the grounds advanced.
The ground of procedural impropriety
[46] Mr Simpson submits that the Central Authority was wrong to take ten months to evaluate the Hague Convention access application. He submits that all the relevant facts were available by April 2021 and the Central Authority wrongly changed its view on the application because of an interview subsequently undertaken with Anna when Anna is an alienated child.
[47] Although it is not completely clear to me from Mr Simpson’s submissions, it seems that Mr Simpson’s main point here is that the Central Authority should have proceeded with the Hague Convention access application in April 2021. The difficulty with this position is that it was Mr Simpson himself who requested the pausing of the application at that time. It was not until the end of September 2021 that he made a request that the application be reactivated. That, in and of itself, explains at least half of the allegedly improper delay.
[48] It appears that the interview with Anna relevant to the judicial review proceedings took place in April 2021 and I do not consider it unreasonable that the Central Authority required an updated assessment of the situation from Ms Soljan given the passage of time. I note also that the delays in obtaining the further advice are said to be a consequence of the COVID-19 pandemic. A delay of this nature is unfortunate but does not amount to procedural impropriety.
[49] Section 107 of the Act contains a direction that return applications must be addressed, so far as practicable, with priority, and “speedily”. Particularly, the Act indicates (although it does not require), that return applications are to be dealt with within a period of six weeks.30 However, the Act does not impose a similar approach to applications for access.31 As such, I am of the view that there has been no failure to follow proper process in the circumstances. There is no direction that either the Central Authority or the Courts deal with such applications within any defined time. Nor do I consider that the delay which occurred was of itself unreasonable.
[50] An assessment of procedural non-compliance requires a consideration of whether there was in fact non-compliance, and secondly, what (if any) effect non- compliance may have had.32 Or in other words:33
…whether the legislature intended the person making the determination to comply with [a] time provision, whether a fixed time or a reasonable time… [and] if so, did the legislature intend that a failure to comply with such a time provision would deprive the decision maker of jurisdiction and render any decision which he purported to make null and void?
[51] To my mind, the critical consideration here is whether non-compliance with a requirement to make a decision within a certain timeframe has had an actually adverse effect.34
[52] Not only am I of the view that in these circumstances there was no unreasonable delay by the Central Authority, but I consider that even if that delay was unreasonable, Mr Simpson was not adversely affected by it. By the time Mr Simpson indicated his intention to proceed in September 2021, matters had progressed to a point where the Central Authority could have reasonably assessed that Mr Simpson’s Hague Convention access application not well founded.
[53] Mr Simpson’s statement of claim also refers to the assessment of procedural impropriety through the quality of reasoning underlying the decision, the weight
30 Section 107(2). This requirement is also contained in art 11 of the Hague Convention.
31 As discussed earlier, there is a general exhortation in Art 2 of the Hague Convention for a contracting state to use the most expeditious procedures available.
32 See Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286; [1995] 1 All ER 367 (PC).
33 At 1296.
34 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, Lexis Nexis, Wellington, 2018) at 547.
placed on factors in reaching the decision, and the way the decision was justified. These factors seem to indicate that that Mr Simpson is also concerned that the Central Authority either took into account irrelevant matters or did not take into account relevant matters, rather than merely failed to follow a proper procedure.
[54] The fact that a further interview took place with Anna in the context of the earlier judicial review proceeding and that she once again made plain in that interview that she did not wish to have contact with Mr Simpson cannot be ignored. As I have discussed earlier, the finding of the Court of Appeal that it was desirable for Anna to have a relationship with her father remains correct, in principle, but cannot override an assessment of Anna’s welfare and best interests at the time a Hague Convention application for access was being considered. The practical difficulties in enforcing contact between Anna and Mr Simpson, in all the circumstances, cannot be overlooked. I conclude that in making its decision, the Central Authority did not take irrelevant matters into consideration nor omitted to consider relevant matters.
[55] I record that Mr Simpson also contends that the Central Authority is influenced by warrants and orders apparently issued by the German authorities against New Zealand officials for the support of child abduction and child abuse. Any connection between this and the Central Authority’s decision not to proceed with the Hague Convention access application is not advanced with any clarity in Mr Simpson’s submissions. For this reason, I do not discuss this aspect further.
The ground of unreasonableness
[56] Mr Simpson submits that the Central Authority’s decision not to proceed with the Hague Convention access application is unreasonable given:
(a)the findings of the Court of Appeal;
(b)the findings of the New Zealand courts that Anna is an alienated child;
(c)the failure of the Family Court to determine care of and access to Anna since the interim parenting order made in September 2017; and
(d)the failure of the Central Authority (and other New Zealand authorities) to work with Anna as an alienated child.
[57] There is a high threshold for a finding of unreasonableness. As submitted by counsel for the Central Authority, the orthodox position is that a decision must be “so unreasonable that no reasonable authority could have come to it”.35
[58]I deal firstly with the allegation of delay in the Family Court.
[59] The Central Authority submits that this Court should not deal with that issue as it cannot respond for the Family Court and the Family Court is not a party to this proceeding. I agree that the allegation of delay is not appropriately dealt with in this proceeding. In addition, I note that Mr Simpson made the same allegation about delay in the Family Court in his earlier judicial review claim (to which the Family Court at Tauranga was the respondent). The High Court concluded in relation to that allegation that it was clear that the Family Court has progressed the issue of the best care and contact situation for Anna adequately under difficult circumstances and found that the Family Court had not refused to exercise its jurisdiction, nor had the delay equated to an effective refusal to exercise jurisdiction.36 The record of steps taken since the High Court decision was delivered on 30 September 2021, as set out in the Family Court decision of 13 June 2022, does not suggest to me that any further allegation of delay is likely to be established.37
[60] I have already considered in the context of the other judicial review grounds advanced the issues in relation to the findings of the Court of Appeal about the desirability of Anna having a relationship with her father and the findings of the New Zealand courts that Anna is an alienated child. For the reasons set out above, I am not satisfied that these findings make the Central Authority’s conclusion in respect of the Hague Convention access application unreasonable.
35 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (CA) at 229.
36 Above n 10, at [48] and [52]. See also [47], where the Court questioned without deciding the matter, whether, in the absence of a statutory mandate of timeliness, a failure by a judicial body to exercise its jurisdiction in proper time can be a matter for judicial review, citing Deliu v Office of the Judicial Conduct Commissioner [2012] NZHC 356.
37 [Simpson] v [Hamilton] [2022] NZFC 4896.
[61] I have considered specifically Mr Simpson’s submission that the failure of the Central Authority (and other New Zealand authorities) to do more with Anna to resolve her alienation from him is unreasonable.
[62] Article 21 of the Hague Convention provides that the Central Authority “shall take steps to remove, as far as possible, all obstacles to the exercise of [rights of access]”. I consider that Anna’s views on contact with her father can be regarded as such an obstacle. However, it is clear from the record that considerable effort has been made to ensure Anna has had access to counselling and therapy, which will have involved discussion of her relationship with her father, and the possibility of contact with him. Anna has had numerous interviews for the purpose of providing the courts with psychological reports pursuant to s 133 of the Act. The courts have had the benefit of those reports in the return proceedings as well as the parenting order proceedings.
[63] I acknowledge the comments of the Court of Appeal in respect of the initial s 133 report tendered in the context of the application for a return order in the Family Court. That report undoubtedly misrepresented the situation as at that time, owing to the influence of Ms Hamilton on Anna’s views of her father. Mr Simpson’s concerns in respect of that are understandable.
[64] Ultimately, I find that the Central Authority did not act unreasonably in not taking additional steps to work with Anna as an alienated child. The parenting order proceedings remain extant before the Family Court and in all the circumstances I consider it reasonable for the Central Authority to conclude that Mr Simpson’s applications for contact with Anna can appropriately progress in that context. That was not a decision that ‘no reasonable authority could have made’ and therefore does not meet the high threshold for a finding of unreasonableness.
[65] Inherent in the decision to not take further steps was a consideration of the merits of the Hague Convention access application, and the fact that the Family Court parenting order proceedings are ongoing. While each process can theoretically operate alongside the other, as noted above, they appear to replicate each other. To me, it is unclear what benefit further action by the Central Authority to ‘work with Anna as an alienated child’ would have while the parenting order proceedings remain extant. It is
not the Central Authority’s role to take any direct steps in relation to counselling or therapy, for example. It is only through Family Court processes that such steps could be ordered and as I have already noted, any separate step taken with the support of the Central Authority would necessarily replicate proceedings already underway.
[66] Further, Anna does not wish to have contact with Mr Simpson. Despite her views being affected by her alienation from her father, once again, it is not possible to ignore Anna’s views.
[67] In the circumstances, it was reasonable for the Central Authority to refuse to mandate the replication of measures that remain ongoing in the Family Court, and which have little chance of success.
Mr Simpson’s objection to certain matters
[68] Mr Simpson has raised in both his submissions and a memorandum to the Court that he objects to the Central Authority’s reference to Ms Soljan’s advice in relation to the Hague Convention access application. He suggests there is a conflict of interest because in that context she was advising him. Despite this, Mr Simpson has set out Ms Soljan’s advice in his own submissions and responded to its substantive points. Accordingly, I do not need to address further whether this objection can be sustained on grounds of legal privilege or any other basis. Mr Simpson also questions the appropriateness of referring to the earlier judicial review decision of this Court but there is no limitation on me referring to any other High Court decision as I see fit.
Relief
[69] For the avoidance of doubt, I record that I would not have granted the relief sought by Mr Simpson. I accept the Central Authority’s submission that if I had found its decision not to proceed with the Hague Convention access application unlawful, it would have been appropriate to quash that decision and remit the matter to the Central Authority to redetermine in light of this Court’s judgment.
[70] I also accept that an order for costs against the Central Authority is barred by s 100(2) of the Act. In those circumstances, I regard Mr Simpson’s claim for damages
for the costs of proceedings in New Zealand as an attempt to circumvent the clear intent of Parliament that costs in such situations should not be payable. The claim for compensation for loss of contact with Anna between February 2017 and May 2022 because of the alleged failure of Immigration New Zealand cannot be pursued in this proceeding which only names the Central Authority as the respondent. I note also for completeness that the prospect of monetary relief in judicial review proceedings is limited to claims for damages pursuant to the New Zealand Bill of Rights Act 1990.38 The Court’s jurisdiction in respect of relief in judicial review proceedings is otherwise limited to declaratory or injunctive relief.39
Result
[71] The application for judicial review of the Central Authority’s decision not to proceed with the Hague Convention access application is dismissed.
Costs
[72] The Central Authority is to file any memorandum as to costs of no more than five pages within ten working days of the date of this judgment. Mr Simpson is to file any reply, also limited to five pages, within a further five working days. I will make a decision as to costs on the papers.
McQueen J
Solicitors:
Crown Law Office, Wellington for Respondent
38 See Simpson v Attorney-General [1994] 3 NZLR 667, (1994) 1 HRNZ 42 (CA); Taunoa v Attorney General [2007] NZSC 70, [2008] 1 NZLR 429; and Fitzgerald v Attorney-General [2022] NZHC 2465.
39 Judicial Review Procedure Act 2016, s 16.
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