Simpson v Hamilton

• Jurisdiction: New Zealand
• Judge: French,Gilbert JJ,Gilbert J,Miller J
• Judgment Date: 22 November 2019
• Neutral Citation: [2019] NZCA 579
• Docket Number: CA398/2018
• Court: Court of Appeal

Between

Simpson

Appellant

and

Hamilton

Respondent

[2019] NZCA 579

Court:

French, Miller and Gilbert JJ

CA398/2018

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Family — return of child unlawfully abducted by her mother from Germany to New Zealand — grounds for refusal of return — two year delay in appeal — Care of Children Act 2002 — Hague Convention on the Civil Aspects of International Child Abduction

Counsel:

Appellant in person

A E Ashmore and N J Fairley for Respondent

T A Gunn lawyer for child

M M Casey QC and D Sothieson for Central Authority

The appeal is dismissed.

JUDGMENT OF THE COURT

REASONS

French and Gilbert JJ	[1]
Miller J (concurring)	[87]

French AND Gilbert JJ

(Given by Gilbert J)

Table of Contents

Introduction	[1]
Background
Breach of access orders in Germany	[10]
Abduction	[12]
Custody order in favour of the father is made in Germany	[13]
Arrest warrant issued for Mr Hamilton	[14]
The mother's appeal against the custody order is dismissed	[15]
Family arrives in New Zealand	[16]
The father's attempts to locate Anna	[17]
Arrest warrant issued for the mother	[18]
Surrender order for Anna	[19]
Orders preventing Anna's removal from New Zealand	[20]
Application under s 105 filed in the Family Court	[21]
Deportation notices issued	[22]
Three defences pleaded opposing order for Anna's return	[24]
Psychologist's report	[25]
Family Court decision	[30]
Appeal to the High Court	[38]
High Court decision	[39]
Appeal to this Court
Grounds of appeal	[40]
Issues	[43]
Was the settled defence made out?
Submissions on appeal	[45]
Analysis	[46]
Was the child objection defence made out?
Submissions on appeal	[55]
Analysis	[59]
Was the discretion to decline return appropriately exercised?
Submissions on appeal	[65]
Analysis	[66]
Disposition	[77]
Result	[86]

Introduction

1 This appeal concerns whether an order should be made under s 105 of the Care of Children Act 2004 (the Act) for the return to Germany of a girl, now aged 12, who was unlawfully abducted by her mother and brought to New Zealand on 23 January 2015 in defiance of a German court order awarding sole custody of the child to the father.

2 Subpart 4 of the Act (which includes s 105) implements the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) which responded to the need to protect children internationally from the harmful effects of their wrongful removal or retention outside the State of their habitual residence. The dual objects of the Hague Convention are to secure the prompt return of children wrongfully removed to or retained in any Contracting State and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the others.

3 The child and her parents are German nationals. So too is the child's stepfather and her younger half-sister. Despite having no family or other support in this country, the mother, the child, her stepfather and half-sister arrived in Christchurch in January 2015 and relocated to the Coromandel region in March 2015. The stepfather left behind in Germany his other daughter, then aged six, from a previous marriage.

4 To comply with the publication restrictions in s 139 of the Care of Children Act, we anonymise the parties' names and adopt the same pseudonyms used in the High Court. We refer to the child as “Anna”, her father as “Mr Simpson”, her mother as “Ms Hamilton” and her stepfather as “Mr Hamilton”.

5 Because the family was in hiding, nearly two years passed before the father discovered that Anna was living in New Zealand. This explains why it was not until 22 February 2017 that the Central Authority in New Zealand filed an application on behalf of the father under s 105 seeking an order for Anna's return to Germany.

6 In a judgment delivered on 1 September 2017, the Family Court at Tauranga declined to make an order for Anna's return. 1 Judge Coyle found that two grounds for refusing to make a return order were made out. First, the application was made more than one year after removal and Anna was now settled in her new environment

(s 106(1)(a)). 2 Secondly, Anna objected to being returned and had attained an age and degree of maturity such that it was appropriate to take her views into account (s 106(1)(d)). 3 The Judge considered that the discretion should be exercised by not making an order for return. 4

7 The father's appeal from the Family Court judgment was dismissed by the High Court in a results judgment delivered on 18 May 2018. 5 Paul Davison J gave his reasons in a judgment delivered on 11 June 2018. 6

8 This Court granted leave for a second appeal on 26 February 2019. 7 The Secretary for Justice, as the Central Authority for New Zealand under the Hague Convention, was given leave to intervene because the appeal raises issues of general public importance. The Authority is particularly concerned to ensure that the objectives and purposes of the Convention are not diluted.

9 Following that brief introduction, it will be helpful to give a fuller overview of the background facts before addressing the grounds of appeal.

Background

Breach of access orders in Germany

10 Anna was born in Germany on 3 July 2007. Her parents separated in 2009 and her mother has had day-to-day care of Anna ever since. 8 The mother persistently failed to cooperate over access in breach of various access orders made by the German courts. 9 As a result, the father's access became progressively less frequent: in 2011 he had access to Anna on 25 days instead of the 72 ordered; in 2012 on three days instead of 60; and in 2013 and 2014 he had no access at all.

11 In about February 2014, the mother advised the Nüernberg Higher Regional Court that she and her husband, Mr Hamilton, had decided to travel to Costa Rica for six months and wished to take Anna with them. The Court ordered that the father was to have contact via Skype every Saturday for at least 15 minutes during this time. None of these contact sessions took place despite the father doing his best to make them happen. It transpired that the family did not go to Costa Rica. Instead, they made two separate overseas trips. They went first to Brazil in March 2014, returning to Fürth, Germany in May 2014. They then went to Scotland in July 2014 returning to a different town in Germany, Gräfenberg, in September 2014.

Abduction

12 Anna, who was then aged seven, was enrolled in a school in Fürth in September 2014. Six weeks later, the mother reported that Anna was sick, but she never returned her to school and no reason was given. In fact, on 11 November 2014, the mother and Mr Hamilton took Anna overseas (together with their daughter who was then aged three) without telling anyone where they were going. This was in contravention of the existing access orders and just 15 days before the hearing in the Fürth District Court of the father's application for sole custody of Anna. The father initially applied, in November 2013, for the right to determine Anna's place of residence. Then, in August 2014, he amended his application to include sole custody. Although the mother absconded before the hearing, she was represented by counsel at the hearing. She also provided written statements in opposition to the application. These were submitted both before and after her departure.

Custody order in favour of the father is made in Germany

13 The Fürth District Court awarded sole custody of Anna to her father on 17 December 2014. This outcome was supported by the Guardian ad litem for Anna. The Court made various pertinent observations which provide important context for the present appeal. It is therefore helpful to set these out (translated as follows):

While the [father] seeks to have regular contact with [Anna], the [mother], for years, has been trying to completely thwart his right of access where possible.

…

The [mother] has for many years harboured a deep-seated resentment towards the [father]. She is trying to hide from him and is practically on the run. That a joint parental custody is not possible under these circumstances and requires no further explanation.

The transfer of parental custody to the father is in the best interest of the child. The ingrained resentment the mother of the child holds against the father of the child, by now significantly impairs the mother's ability to raise her daughter. It has now developed into the driving force behind the actions taken by the mother. With her actions, the mother wilfully and significantly disregards the interests of her daughter. From numerous statements the child made at access proceedings, from the psychological assessment created on that occasion by expert Dr. Marianne Schwabe-Höllein, from statements made by the Youth Welfare Office and the Guardian ad litem, it is not only known to the court, but also to the mother of the child, that her daughter desperately yearns for contact with her father. This has not changed to this day. Even after her having spent several months at an unknown location and even in light of an incident that happened on 20.09.2013, where [Anna] became eye-witness to a dramatic encounter between her father and her mother's husband, who was operating a passenger vehicle at the time, and on which the child only has the perspective of her mother for explanation, [Anna] told the contact supervisor that she would like to do ‘everything with her father’ again. That [Anna], in light of her mother's hugely rejectionist attitude, which would not have gone unnoticed by her and her mother's prerogative of interpretation of the events on...