Asm v Dpm

• Jurisdiction: New Zealand
• Judge: Venning J
• Judgment Date: 12 February 2016
• Neutral Citation: [2016] NZHC 137
• Docket Number: CIV-2015-404-002687
• Court: High Court
• Date: 12 February 2016

Under the Care of Children Act 2004 and the ratification by that Act of the Hague Convention on the Civil Aspects of International Child Abduction 1980

In the matter of an appeal against a decision of Judge Maude made in the North Shore Family Court on 3 November 2015

BETWEEN

ASM

Appellant

and

DPM

Respondent

[2016] NZHC 137

CIV-2015-404-002687

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Catchline: Appeal by the father against a Family Court decision which directed that the parties' child be returned to Bulgaria — the father brought the child to New Zealand and the parties had one other child who had remained in Bulgaria with the mother — the mother applied to invoke the provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980 — the appellant relied on relied on the grounds in s106(1)(c)(i) & (ii) Care of Children Act 2004 (COCA) (return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation) — the appellant alleged that the respondent had been abusive toward both children and he had suffered due to her connections with powerful people in Bulgaria — the FC was satisfied that the Bulgarian justice system and support agencies provided for the welfare and best interests of children post-separation where allegations of ill-treatment or domestic violence were made — the appellant also argued that Court should refuse the order because the father, his partner and the child had applied for refugee status in NZ thereby engaging s106(1)(e) COCA (that the return of the child was not permitted by the fundamental principles of NZ law relating to the protection of human rights and fundamental freedoms) — the refugee application had been declined but the father intended to exercise his right of appeal on the child's behalf to the Immigration and Protection Tribunal — whether application for leave to adduce evidence of the refugee application should be allowed — whether the appeal against the order that the child be returned to Bulgaria should be declined under s106(1) COCA.

Appearances:

D J Ryken and S G Dalley for Appellant

I M Blackford on instructions for Respondent from NZ CentralAuthority with D A Manning

JUDGMENT OF Venning J

Introduction

1 ASM (the father) appeals against the decision of Judge Maude in the Family Court at North Shore directing that the parties' child (A) be returned to Bulgaria. 1

Background

2 A is the second child of the father and DPM (the mother). She was born on 23 October 2012. She is three years and four months old.

3 The father brought A to New Zealand in July 2015. The parties have one other child, an older daughter (B). The mother and B remain in Bulgaria. On 1 October 2015 the mother applied to invoke the provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980 as incorporated into New Zealand domestic law by ss 94-124 of the Care of Children Act 2004 (COCA). 2

4 In his decision of 3 November 2015 Judge Maude accepted that the fundamental jurisdictional requirements of s 105(1) COCA were satisfied. A was in New Zealand and had been removed from Bulgaria, a contracting state, in breach of the mother's custody rights in respect of her. Further, the mother was, at the time of removal, exercising those rights or would have been but for the removal. Finally, A was habitually resident in Bulgaria.

5 Accordingly, unless the father could establish one (or more) of the grounds for refusal of the order as set out in s 106(1) COCA, the order to return the child to the mother in Bulgaria had to be made. 3

6 The father relied on the grounds in s 106(1)(c)(i) and (ii) COCA, namely that there was a grave risk that A's return to Bulgaria would expose her to physical or psychological harm or would otherwise place her in an intolerable situation, because, he alleged, DPM had been abusive toward both children and he had suffered due to her connections with powerful people in Bulgaria.

7 Judge Maude considered that the behaviour of the mother as described by the father could be dealt with by the Bulgarian legal system. He was satisfied that the Bulgarian justice system and support agencies provided for the welfare and best interests of children post-separation where allegations of ill-treatment or domestic violence were made. The Judge considered that the father's assertions as to the gravity of risk were undermined by the reality the father had left B with the mother. He directed the return of A to Bulgaria.

The appeal

8 On appeal, the father repeats his submission that there is a grave risk that A's return to Bulgaria would expose A to physical or psychological harm or would otherwise place her in an intolerable situation. 4 The father also seeks to raise a new ground, namely that the Court should refuse the order because the father, his partner and A, (on the father's application) have applied for refugee status in New Zealand. He submits that s 106(1)(e) COCA is engaged and the Court should refuse to make an order for the return of the child. He submits that for the Court to direct the return of the child pending the outcome of the application for refugee status would amount to refoulement and so breach the Convention Relating to the Status of Refugees. 5 He seeks an order staying the current appeal pending the outcome of the applications for refugee status.

The Court's approach

9 It was conceded before the Family Court (and confirmed by Mr Ryken on this appeal) that the grounds under s 105(1) COCA were established. The onus is on the father to establish one of the grounds in s 106(1) is made out. If one of the grounds is made out the Court may refuse to make an order for A's return to Bulgaria. The Court must exercise that discretion within the context of the Convention's objectives. 6

Preliminary matters

10 The father did not tell the Family Court that he, his partner and A had applied for refugee status. He seeks leave to adduce further evidence to confirm the application. He also seeks leave to adduce further evidence relating to the status of a temporary protection order, now lapsed, that he had obtained against the mother in Bulgaria.

11 Ms Blackford confirmed that the application to adduce further evidence (of the fact of the application for refugee status) was not opposed, and nor was the further evidence relating to the temporary protection order. The Central Authority has filed further evidence on that point as well.

12 This Court may grant leave to adduce further evidence on a question of fact if there are special reasons to hear it. 7

13 The further evidence, (at least insofar as it confirms the application for refugee status) is a matter of undisputed fact. While it raises an issue of law, the Central Authority has had the opportunity to respond to it fully. I grant leave for the father to raise the issue of the effect of the application for refugee status and 106(2) on appeal and to admit the evidence relating to it. 8

14 The further evidence as to the status of the protection order the father obtained against the mother is in the nature of updating evidence, as is the most recent affidavit of the father of 9 February confirming that the Refugee Status Branch declined the applications for refugee status. The father has instructed counsel to appeal. I grant leave to admit the evidence in respect of both matters. 9

15 The father had previously filed an affidavit in support of the appeal referring in some more detail to the refugee application. Mr Ryken confirmed the father no longer seeks to rely on the material contained in that affidavit for the purposes of this

appeal. He does however seek that the affidavit be sealed and not read. I order accordingly

Decision

16 As it is properly conceded s 105 COCA is engaged, the father must make out one of the grounds under either s 106(1)(c) or s 106(1)(e) to engage the discretion of the Court. Unless he is able to satisfy the Court one or other of those grounds applies, the Court must order A be returned promptly to the mother. 10

The s 106(1)(c) argument

17 Section 106 (1)(c) requires the father to satisfy the Court that there is a grave risk that return to Bulgaria would (i) expose A to physical or psychological harm; or

(ii) otherwise place A in an intolerable situation.

18 The s 106 (1)(c) defence is not easy to invoke successfully partly because of the requirement for a “grave risk” and partly because of the judicial expectations that in the normal course of events the legal systems of other countries will protect children from harm. 11

19 In considering the gravity of the risk the Court is entitled to consider the overseas legal system and whether it might have the necessary principles and resources to protect the interests of the child: TB v JB (Abduction: grave risk of harm). 12

20 There are two aspects to the father's argument under s 106(1)(c): first that A will be harmed by the mother, and second that the Court in Bulgaria will not protect the proper interests and welfare of A.

21 Judge Maude summarised the father's allegations of the mother's violence as:

• • an incident (with no details) which necessitated the father picking up of B to comfort and settle her. The father described B as settling and not having been harmed;

• • the mother shaking both A and B on many occasions;

• • the mother smacking both A and B on their bottoms when babies. He described sometimes seeing bruises on their bottoms;

• • once when A sucked her thumb the mother forced the thumb into her mouth;

• • when B was six to seven months of age the mother threw her onto a...