T v H HC Wanganui CIV 2008-483-000297
[2008] NZHC 2666
•31 October 2008
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
CIV 2008-483-000297
IN THE MATTER OF the Care of Children Act 2004
BETWEEN T Appellant
ANDH Respondent
Hearing: 29 October 2008
Appearances: M T (In Person) Appellant
J E Key for Respondent and the Central Authority
Judgment: 31 October 2008
JUDGMENT OF MILLER J
[1] This is an application for a stay pending appeal of an order of the Family Court directing that the two children of the relationship between MT and DH, T (aged 3) and M (20 months), be returned to Australia where they were habitually resident before their removal to New Zealand in February 2008.
[2] At the conclusion of the hearing I granted the stay until 27 November 2008, when the appeal is to be heard, and advised that I would give my reasons in writing.
The narrative
[3] Both parties are New Zealanders. They met in 2001 and decided to move to
Australia together in early 2002. The two children were born there. The Judge described the relationship as “volatile and at times unconventional” but for most of
T V H HC WANG CIV 2008-483-000297 31 October 2008
the time between April 2002 and late January 2008 the parties lived together as a couple, “albeit a couple in substantial turmoil”.
[4] In January 2008 the couple separated and the father left the home. On 18
January 2008 the mother advised the father that the son, T, had made allegations of sexual abuse against him, which he denies. In early February 2008 the mother obtained from the New South Wales Police an interim Apprehended Domestic Violence Order. On a without admissions basis, the father consented to a final Apprehended Violence Order, under which T is the protected person. That order prohibits the father from residing with T or entering premises in which T lives. He is also prevented from going within 500m of the child’s home or childcare facility.
[5] On 20 February 2008 T was taken to New Zealand by his maternal grandmother. A week later the mother returned to New Zealand with M. The mother, for reasons of employment, returned to Australia, leaving the children with an aunt. On 26 May 2008 the aunt applied without notice to the Family Court at Wanganui for leave to apply and for an interim Parenting Order, for an Order Preventing Removal of the children from New Zealand and a Temporary Protection Order. A Duty Judge granted the Order Preventing Removal, leave and the Interim Parenting Order but placed the application for a Protection Order on Notice.
[6] Apparently unaware that the children had been taken to New Zealand, the father filed in Australia an application for a Parenting Order as to contact in February
2008. It appears that he was trying to advance that application when on 27 May
2008 he learnt of the New Zealand orders and the fact that the children were in New
Zealand.
[7] In late May or early June 2008 the mother returned to New Zealand. The aunt applied for the Parenting Order in her favour to be discharged. An Interim Parenting order and an Order Preventing Removal were made in the mother’s favour on 3 June 2008.
The legislation
[8] The Return Order was made on 10 September 2008 under s105 of the Care of
Children Act 2004. It provides:
105 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
(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.
(3) A Court hearing an application made under subsection (1) in relation to the removal of a child from a Contracting State to New Zealand may request the applicant to obtain an order from a court of that State, or a decision of a competent authority of that State, declaring that the removal was wrongful within the meaning of Article 3 of the Convention as it applies in that State, and may adjourn the proceedings for that purpose.
(4) A Court may dismiss an application made to it under subsection (1) in respect of a child or adjourn the proceedings if the Court—
(a) is not satisfied that the child is in New Zealand; or
(b)is satisfied that the child has been taken out of New Zealand to another country.
[9] Rights of custody are defined in s97:
97 Rights of custody defined
For the purposes of this subpart, rights of custody, in relation to a child, include the following rights attributed to a person, institution, or other body, either jointly or alone, under the law of the Contracting State in which the
child was habitually resident immediately before the child's removal or retention:
(a)rights relating to the care of the person of the child (for example, the role of providing day-to-day care for the child); and
(b)in particular, the right to determine the child's place of residence.
[10] It appears to be common ground that the relevant provisions of the Family
Law Act 1975 (Australia) are s111B(4), which provides:
(4) For the purposes of the Convention:
(a)each of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any order of a court for the time being in force;
and s61B, which contains a definition of “parental responsibility”:
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
[11] Grounds for refusing an order for the return of a child are provided for in s106 of the Care of Children Act:
106 Grounds for refusal of order for return of child
(1) If an application under section 105(1) is made to a Court in relation to the removal of a child from a Contracting State to New Zealand, the Court may refuse to make an order under section [105(2)] for the return of the child if any person who opposes the making of the order establishes to the satisfaction of the Court—
(a)that the application was made more than 1 year after the removal of the child, and the child is now settled in his or her new environment; or
(b)that the person by whom or on whose behalf the application is made—
(i)was not actually exercising custody rights in respect of the child at the time of the removal, unless that person establishes to the satisfaction of the Court that those custody rights would have been exercised if the child had not been removed; or
(ii) consented to, or later acquiesced in, the removal; or
(c) that there is a grave risk that the child's return—
(i)would expose the child to physical or psychological harm; or
(ii) would otherwise place the child in an intolerable situation; or
(d)that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate[, in addition to taking them into account in accordance with section 6(2)(b), also] to give weight to the child's views; or
(e) that the return of the child is not permitted by the fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.
(2) In determining whether subsection (1)(e) applies in respect of an application made under section 105(1) in respect of a child, the Court may consider, among other things,—
(a)whether the return of the child would be inconsistent with any rights that the child, or any other person, has under the law of New Zealand relating to political refugees or political asylum:
(b)whether the return of the child would be likely to result in discrimination against the child or any other person on any of the grounds on which discrimination is not permitted by the United Nations International Covenants on Human Rights.
(3) On hearing an application made under section 105(1) in respect of a child, a Court must not refuse to make an order under section 105(2) in respect of the child just because there is in force or enforceable in New Zealand an order about the role of providing day-to-day care for that child, but the Court may have regard to the reasons for the making of that order.
The Family Court proceeding
[12] The mother originally raised a number of defences including, under s106(1)(c), a risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation. But in an amended defence filed with legal assistance shortly before the hearing she confined her defence to two matters: The father consented to the removal of the children, and if they were removed in breach of his rights of custody he was not actually exercising any such right.
[13] The Judge observed that rights of custody are to be assessed by the law of the Contracting State in which the child habitually resided immediately before removal. He accepted evidence from a senior legal officer with the Commonwealth Attorney- General’s Department that under Australian law both parents retain joint parental responsibility for the children until the age of 18 and that in this case there was no evidence of any Court order diminishing that parenting role. Accordingly, the father enjoyed rights of custody.
[14] Turning to the question whether the father was actually exercising those rights at the time of removal, the Judge noted that there was a great deal of dispute but concluded that the father was exercising such rights. He resided in the same home for much of the childrens’ lives and was involved in decisions about where they should live. From separation he was unable to exercise his rights for two reasons, both of which were outside his control. The first was the Apprehended Violence Order, the effect of which was far reaching, terminating any real ability for him to exercise any rights of involvement not only with the protected child, T, but by flow-on effect, with M. The second factor was that in February the children were removed from Australia without the knowledge of the father. By analogy with Ryan v Phelps [1999] NZFLR 865, the Judge held that there was no basis for an argument that the father had lost his rights of custody under Australian law.
[15] The Judge rejected the argument that the father had consented to the removal of the children after reviewing the evidence at length, concluding that the mother’s defence in this respect was inconsistent with evidence that she had removed the children from Australia without telling him; all evidence pointed to a surreptitious removal of the children without his consent.
[16] The Judge ordered that the children be returned promptly to New South Wales. He noted that work needed to be done in terms of organisational matters, evidently contemplating that the mother would not return to Australia with the children.
The appeal
[17] On appeal, the mother alleges that her right of appeal would be rendered nugatory if the stay were not granted, that the father did not have rights of custody and was not exercising them at the time of removal, and that the children would be at great risk if they were to be returned, since she would not return with them. It appears that both parties contemplate that, since the Apprehended Violence Order is still in place, the children would not be cared for by their father on their return to Australia but rather would be placed in some form of care, the details of which are not before the Court.
[18] The application for a stay was firmly opposed by Ms Key, who contended that the appeal has no prospects of success.
Stay of execution
[19] The application for stay is governed by Rule 710 of the High Court Rules: Crain v Crain [1991] NZFLR 224. The applicable principles were discussed in Crosby v Crosby (2001) 21 FRNZ 325, which was decided under the Guardianship Act 1968, and are conveniently gathered in Brookers Family Law: Child Law at CC143.18. In light of the way in which the application was argued, I do not find it necessary to rehearse them.
Discussion
[20] I do not think the appeal can be considered nugatory if a stay is denied, since the judgment of this Court is capable of enforcement in Australia: Z v Z HC AK CIV-2006-404-1260 27 March 2006. Perhaps more importantly, to refuse a stay is not to determine finally whether the children will live in New Zealand, since that question may be determined by the Australian Courts. Nor do I consider that the argument that the father consented to the removal has substantial prospects of success.
[21] I granted the application for three reasons. First, it is arguable that by reason of the Apprehended Violence Order the father did not possess in respect of T, and was not exercising in respect of both children, rights of custody for purposes of Australian law. If so, the grounds for an order under s105 were not made out.
[22] Second, it is arguable that there is a grave risk that the return of the children would place them in an intolerable situation. I accept that the Court will ordinarily assume that authorities in another Convention country can and will ensure the children are appropriately cared for. Ms Key is also surely right to say that the Court must be astute to avoid manipulation by the mother, who alleges she will not return with them. But s106(1)(c) poses a factual question that must be answered by the Family Court, and by this Court on appeal. On the facts, it appears that the children cannot return to their father’s care while the Apprehended Violence Order remains in force. Ms Key says there is evidence about the Australian care arrangements but declines to disclose it to the mother. For present purposes, this ground of appeal must be considered arguable.
[23] Third, the appeal is to be heard within a month. MT has been told that there will be no adjournments.
Timetable
[24] The appeal will be heard on 27 November (half a day). MT is to file and serve her written submissions by 13 November. Ms Key is to file her submissions by 23 November.
Miller J
In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 2.00pm on the 31st day of October 2008.
Solicitors:
J E Key of Fielding for the Respondent
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