S v P

• Jurisdiction: New Zealand
• Judge: Jagose J
• Judgment Date: 11 October 2018
• Neutral Citation: [2018] NZHC 2645
• Docket Number: CIV-2018-404-1080
• Court: High Court
• Date: 11 October 2018

Under the Care of Children Act 2004

In the Matter of an appeal against the decision of the Family Court at Manukau dated 7 May 2018

Between

S

Appellant

and

P

Respondent

[2018] NZHC 2645

CIV-2018-404-1080

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Care of Children Act 2004 s105 — Hague Convention — appeal against Family Court decision that children be returned to Australia from New Zealand — appeal about forum — relocation — “habitual residence” — applicable principles — alleged acquiescence — burden of proof — procedure — anticipatory breach — precedent — appeal dismissed

Appearances:

L F Soljan for the appellant

A E Ashmore and N J Fairley for the respondent

M N Tolich as lawyer for child

Counsel/Solicitors:

Ms L Soljan, Barrister, Auckland

Ms L Dunraj (appellant's instructing solicitor), Auckland Family and Elder Law, Auckland

Mr A Ashmore, Barrister, Auckland

Mr M Tolich, Corban Revell, Solicitors, Auckland

JUDGMENT OF Jagose J

Introduction

1 S appeals against a Family Court decision ordering the return of her two children to Australia where their father, P, resides.

2 S was formerly in a relationship with P, the respondent. They lived together in Western Australia with their two children (now aged four and eight). After negative publicity relating to P's business practices, the parties agreed the mother should take the children temporarily to New Zealand, to avoid the impact of public scrutiny. No definitive end-point was agreed, but the strong expectation was the children would be returned after the end of the 2017, and in time for commencement of the 2018 school year.

3 That has not happened; the children remain in New Zealand with their mother. On 15 January 2018, P's application for their return under s 105 of the Care of Children Act 2004 (the “Act”) was filed in the Family Court. 1 That Act gives effect to the Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”). S opposed on grounds P consented to or acquiesced in the children's retention in New Zealand.

4 The Family Court disagreed. On 7 May 2018, Judge Callinicos found S failed to discharge the onus of establishing P's clear and unequivocal consent or acquiescence. 2 S appeals that decision.

Approach on appeal

5 The Convention is incorporated into New Zealand legislation in Part 4 of the Act. P's application for return of the children is to be addressed under s 105. The determination of such an application involves three key stages:

• (a) first, the onus is on the applicant to establish the threshold requirements in s 105 are made out;

• (b) second, if that threshold is crossed, the onus passes to the respondent to establish one of the possible defences enumerated in s 106 – here, the defence of consent or acquiescence;

• (c) finally, even if a s 106 defence is made out, I retain a residual discretion nonetheless to require the children to be returned. (Whereas if the defence is not made out, I “must” order the children's return. 3)

6 The approach on appeal is not ordinarily the same throughout. 4 The first two stages require an evaluation of factual matters. Following Austin, Nichols, I am free to reconsider the factual issues afresh on appeal. 5 The first stage above was conceded by S before the Family Court and again today. Nonetheless, I address it briefly below to confirm the concession is appropriate.

7 The final stage would ordinarily be an appeal against a discretion. 6 However, as Judge Callinicos did not address this third stage (that being unnecessary given his previous findings), I may approach it afresh if it becomes relevant to my determination.

8 Before working through each of the three stages, I pause to lay out the context to this appeal: the factual background, the Family Court decision, and the Convention's objectives.

Context

—factual background

9 The parties began their relationship in 2006, living together since early 2008 and marrying the next year. The two subject children were born in 2010 and 2014.

They all lived together in Western Australia throughout the intervening years until, as Judge Callinicos puts it: 7

… a once stable and happy family situation in Perth, Australia was unsettled by a sudden corruption and criminal inquiry into the business operations conducted by the applicant father.

The investigation caused considerable stress to the parties. They faced growing negative publicity and community outcry – including risk to at least the older child from fellow school children, whose families may have been affected by P's activities – as well as the financial strain of losing their primary income source.

10 The parties agreed S and the children should travel to New Zealand temporarily to distance themselves from these events. They left on one-way tickets on 5 August 2017. No precise date of return was agreed but, as I discuss later, I agree with the Judge the evidence indicates a strong expectation they would return to Australia after the end of the 2017, and in time for the 2018, school year.

11 The investigation went poorly for P, and in August 2017 he advised S to “prepare for the worst”. Her case is, from that point onwards, he began making plans to move to New Zealand. Or, even if that was not his actual intention, she submits his conduct throughout September to December clearly communicated that intention to her.

12 The substance of Judge Callinicos' decision is an assessment of that conduct.

—Family Court decision

13 Judge Callinicos heard argument on 19 April 2018. As is typical for proceedings under the Convention – where the Act expressly states applications are to be dealt with speedily 8 – the Judge decided the application on the papers, without any testing of the parties' sworn evidence.

14 The Judge's reasoning is detailed and comprehensive. After discussing the background, he identifies the central issue as: 9

… whether, following the children's arrival in New Zealand in accordance with the agreement of the parties, the applicant acquiesced to the children being retained in New Zealand rather than them returning to Australia at the end of the 2017 school year.

15 Before addressing this issue, which relates to the second stage of the test, the Judge found the jurisdictional requirements in s 105 were made out. Then, discussing the relevant factual material and legal principles in considerable depth, His Honour systematically addressed each of the grounds upon which S invited an inference of P's acquiescence.

16 Counsel for S, Lisa Soljan, complains the Judge took an overly narrow approach to addressing the pertinent factual data, rather than the broad and robust approach recommended by other authorities. 10 That complaint is unfounded. After his close analysis, His Honour stepped back: 11

I am cautious not to make determinations based upon a point by point assessment of the various circumstances upon which the respondent relies to establish acquiescence. I remind myself that often circumstances when viewed in isolation may not disclose the fuller picture and that an assessment of all the collective circumstances to the balance of probabilities is required.

17 Leaning heavily on (what he considered) the analogous decision of TB v JPB, 12 His Honour ultimately concluded: 13

Whether viewed collectively or individually, the circumstances relied upon by the respondent fall considerably short of indicating an acquiescence of a real, positive and unequivocal kind. … At best, I could conclude only that there was a slight possibility that his reference to a wish to “migrate” to New Zealand indicated that he might move here permanently. But that mere possibility falls well short of being the requisite unequivocal acquiescence that the children could be retained in New Zealand.

On that basis, the Judge formally ordered the children be returned promptly to Australia.

18 Ms Soljan is particularly critical the Judge elevated the threshold to one of determining the ‘permanence’ of P's arrangements. P's counsel, Alex Ashmore, says it is an easy slip to make. But, as may be seen from the Judge's last sentence above, he plainly had his eye on the main issue: whether P should be taken to have consented to (or acquiesced in) S's retention of the children beyond the date of the original arrangement for their return. I return to this issue at [42] below.

19 S filed her notice of appeal on 1 June 2018.

—Convention objectives

20 The expressed objects of the Convention are to: 14

• (a) secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

• (b) ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

21 These objects must be borne in mind; I am not being asked conclusively to determine the ongoing care and guardianship of the children. The Convention is concerned with the question of forum. As the Convention's official outline explains: 15

The return order is designed to restore the status quo which existed before the wrongful removal or protection, and to deprive the wrongful parent of any advantage that might otherwise be gained by the abduction.

22 I also acknowledge the wider deterrent function of the Convention. Justice Fisher properly recognised the interests of children globally are promoted by a “firm attitude to the return of children” in strictly applying the Convention requirements. 16

23 With this in mind, I turn to the first of the three stages.

Section 105 threshold requirements

24 Subject to s 106, a court must make an order a subject child be returned promptly if an application is made under s...