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DS v JP (Relocation) [2006] NZFC 18 (27 January 2006)

Last Updated: 10 August 2016

ANY PUBLICATION OF A REPORT OF THESE PROCEEDINGS MUST COMPLY WITH S 139 OF THE CARE OF CHILDREN ACT 2004

IN THE FAMILY COURT AT

_{FAM: 2001-002459}

BETWEEN DS Applicant

AND JP Respondent

Hearing: 26 January 2006

Appearances: J Dean for Applicant

C Leech for Respondent

S Maude Counsel to assist the Court

Judgment: 27 January 2006

_{JUDGMENT OF JUDGE A P WALSH}

Introduction

[1] There is a dispute between the parties as to whether the Family Court of Australia or the Family Court of New Zealand should determine an application for variation of a parenting order filed by DS in the Family Court at US on 20 January

2006.

[2] DS also filed a without notice application on 20 January 2006 seeking an order preventing the removal of the parties’ children, S born in 1988 and D born in 2000 from New Zealand. There was urgency in the application because arrangements had been made for the children to return with JP to Australia on 28 January 2006. That application was referred to me on 20 January 2006. After reviewing the history of

_{the proceedings I appointed Mr Maude to assist the Court and requested him to}

DS V JP FC FAM: 2001-002459 27 January 2006

consider the issue of jurisdiction in the context of the Hague Convention and to investigate the application.

[3] I made an order preventing the removal of the children and directed the order would be reviewed on either 26 or 27 January 2006. Time for filing a defence was abridged to 48 hours.

[4] A submissions hearing was held on 26 January 2006. That hearing concluded late that day. Given the issues raised by counsel in their submissions I reserved my judgment. I advised counsel I would give my decision on 27 January 2006 and would give reasons for my decision as soon as I was able to do so.

[5] On 27 January 2006 I issued a decision discharging the order preventing the removal of the children from New Zealand and directing that the application by DS would be more appropriately heard in the Family Court of Australia.

[6] I now set out reasons for my decision.

Background

[7] The parties lived in a de facto relationship for approximately five years. They separated on 31 December 2000. After separation the children remained in the care of JP.

[8] In 2001 proceedings were commenced by DS in the Family Court of New Zealand. On 31 January 2001 pursuant to s13 of the Guardianship Act 1968 an interim order was made preventing the removal of the children from New Zealand. JP consented to a final order being made preventing the removal of the children on

14 May 2001. Subsequently she applied on 31 May 2001 to have the order preventing removal set aside. At that time she indicated she did not intend moving from E on a permanent basis.

[9] On 16 August 2001 orders were made by consent granting custody of the children to JP and defined access was reserved to DS. The order preventing removal of the children from New Zealand was discharged.

[10] At a mediation conference on 23 August 2002 agreement was reached enabling JP to take the children to Australia. The Family Court Judge presiding at that mediation conference issued a minute recording the terms on which DS agreed to the children being removed from New Zealand to Australia. It was recorded JP would return to New Zealand twice a year with the children for one to two weeks during which the children would spend half that time with DS. Provision was also made for DS to have access to the children during the Christmas Holiday period on an alternating annual basis. Directions were made concerning the sharing of costs of travel. Detailed provision was made for phone calls between DS and the children.

[11] Paragraphs 5-7 of the minute issued on 23 August 2002 read as follows:

5. Each party will keep the other party fully advised as to matters relating to guardianship particularly health and education proposals in advance to the extent possible and will keep the other parent informed of each party’s address and telephone number from time to time.

6. The provisions of this agreement are to be registered in B.

7. Either party has the right to request a review of these arrangements at any time within the next 12 months. Such review to be conducted if possible when the mother is in New Zealand. Subject to the agreement being registered in B as aforesaid, the system of law which will be applicable will be New Zealand law up until the time the order is registered in B and it will then be governed by the law according to B.

[12] In November 2003 JP and the children moved to F, Australia.

[13] DS filed an application seeking a warrant preventing the removal of the children from New Zealand in March 2004. Problems had arisen over his access to the children. It appeared he filed this application in anticipation of the children arriving in New Zealand later that year.

[14] After negotiations between the parties a consent order was made on 17

September 2004. That order reflected the terms of a consent memorandum dated 1

September 2004 and signed by counsel then acting for the parties. The terms of that memorandum were as follows:

Joint Memorandum of Counsel for Consent Order relating to Access and

Care

The parties have agreed they will have access and care of their children, S

born in 1988 (6 years) and D, born in 2000 (4 years) as follows:

1. JP will have custody of S and D and their habitual place of residence shall be in Australia.

2. DS is to have access to S and D for a period of 10 days two times a year in the school holidays.

3. DS shall pay the costs of the children returning to New Zealand.

DS shall also pay the costs of either himself or a person he nominates travelling with them until such time and S and D are

permitted by the airline to fly unaccompanied.

4. JP shall pay the costs of the children returning to Australia. JP shall also pay the costs for either herself or a person she nominates travelling with them until such time as S and D are permitted by the airline to fly unaccompanied.

5. The first period of access for D pursuant to this order will be for the school holiday period in September 2004.

6. Weekly telephone contact should occur between DS and S and

D. The children shall ring DS every fortnight between 6pm and

7pm F time and DS shall ring the children every other fortnight between 6pm and 7pm F time. This arrangement will be reversed when the children are in the care of their father.

7. JP shall register any orders granted pursuant to this memorandum in B, Australia and the B system of law will apply to the orders when they are registered.

[15] A certificate of enforceability of the order was issued on 4 November 2004.

[16] It is unclear from the file whether steps were taken to register the orders made on 23 August 2002 and 17 September 2004 in B, Australia.

[17] As a result of further problems over access DS applied without notice on 13

June 2005 for a warrant to enforce access but that application was placed on notice. The Court indicated at that time apart from jurisdiction difficulty it was not satisfied it was appropriate to proceed on a without notice basis. When problems arose over

service on JP an order for substituted service was made on 1 August 2005 directing proceedings be served on JP’s mother.

[18] On 22 September 2005 DS filed an application to vary his application for a warrant to enforce contact. It was necessary for DS to again apply for substituted service on JP’s mother.

[19] When the amended application for a warrant to enforce contact was considered by the Court on 27 October 2005 it was noted the situation had become complicated because the Australian solicitors acting for JP advised they no longer had instructions from her. Effectively at that stage nobody was representing JP in Australia. The Family Court Judge noted DS had filed a memorandum indicating JP still lived at the same address in Australia although her phone had been disconnected. The Judge observed:

It seems to me that the respondent has blatantly frustrated the applicant in his attempt to have contact with these children and that the respondent is unlikely to be co-operative unless there is an order in place.

A warrant was then issued and an order was made for substituted service again on

JP’s mother.

[20] In November 2005 DS applied under the Hague Convention to enforce the contact order in respect of the children.

[21] On 14 December 2005 an order was made in the Family Court of Australia at

F enabling DS to have contact with the children on defined terms during December

2005 and January 2006. A warrant was contained within the order to be enforced if necessary.

Applications Filed in January 2006 in Family Court of New Zealand

[22] In his application seeking a variation of the parenting order made 17

September 2004 DS advised the order had been registered in the Family Court of Australia at F on 10 December 2004. He expressed concern; despite numerous attempts to have contact with the children, there had been no contact from September

2004 to May 2005. After speaking to JP in May 2005 DS claimed JP then moved houses and changed her telephone number but failed to inform him where she had moved to or how he could contact the children.

[23] After the children came to New Zealand in 2005 pursuant to the order made in the Family Court of Australia on 14 December 2005 DS alleged he had a number of concerns relating to the welfare and interest of both children. Those concerns can be summarised as follows:

The children’s clothing was “dirty and smelly”.

The children expressed a wish to stay with DS and his wife (DS had remarried on

18 July 2003).

DS understood the children would be changing homes and this would cause further problems in trying to maintain contact with them and he referred to the history of contact difficulties and the costs incurred by him.

The children’s school reports indicated D was not making good progress at school and the children had been missing school.

S had head lice.

D had alleged JP’s partner was using inappropriate physical punishment on him to discipline him.

DS expressed concern about the cramped living conditions of JP and the children and childcare arrangements implemented by JP.

[24] Overall, DS alleged JP had not complied with orders enabling him to have access to the children nor had she complied with an order made on 14 November

2003 that she pay him costs of $1,495.

[25] As I have already noted I made an order preventing the removal of the children from New Zealand on 20 January 2006 and directed that order be reviewed. That review took place on 26 January 2006.

[26] JP filed an affidavit on 25 January 2006 in response to DS’ application and in support of a notice of defence and an application to discharge the order preventing the removal of the children.

[27] According to JP there had been difficulties over telephone access because DS was threatening her and sending people to her home to also threaten her. She did not name the people who had threatened her nor did she indicate when these incidents had occurred. She set out reasons for earlier relocations in Australia but claimed she had been residing at the same address since June 2005 and had no intention of relocating. She accused DS of initiating conflict.

[28] JP acknowledge S had a problem with head lice but she had taken steps to deal with that issue. In respect of the children’s absence from school JP confirmed the children had “time off” because of a “few recent deaths” but did not provide any details of the deaths and the periods the children were absent from school. She disputed the allegation of violence involving her partner and D. No complaints had been made to the school or other agencies. She also rejected concerns about her living conditions. JP maintained the children were settled in her care and if DS wished to challenge the substantive arrangements of the children that should be done in Australia.

The Law and Relevant Principles

[29] The starting point is s4 of the Care of Children Act 2004 (the Act) which provides that in proceedings relating to care arrangements or guardianship of children the welfare and best interests of the child is the first and paramount consideration. The Court must have particular regard to the principles contained in s5 of the Act in addition to any other matters relevant to an assessment of the welfare and best interests of the child in each particular case. It is important to note

specifically the provisions of s4(2) which provides that the welfare and best interests of the particular child in his or her particular circumstances must be considered.

[30] Section 126 of the Act deals with the issue of jurisdiction and provides:

126 Personal jurisdiction

(1) The Court has jurisdiction under this Act in any of the following cases: (a) If a question of guardianship of a child, or of the role of providing day-

to-day care for a child, or of contact with a child, arises as an ancillary

matter in any proceedings in which the Court has jurisdiction; or

(b) If the child who is the subject of the application or order is, when the application is made, present in New Zealand; or

(c) If the child, a person against whom an order is sought, or the applicant, is, when the application is made, domiciled or resident in New Zealand.

(2) Despite subsection (1), the Court may decline to make an order under this Act if—

(a) Neither the person against whom it is sought nor the child is resident in

New Zealand; and

(b) The Court is of the opinion that no useful purpose would be served by making an order or that in the circumstances the making of an order would be undesirable.

(3) Nothing in this section applies to an appointment (of an eligible spouse or partner of a parent as an additional guardian) under section 23.

[31] Examples of the approach to be adopted by the Court in determining the appropriate forum to hear an application where there is a conflict between parents as to jurisdiction can be found in cases such as Lehartel v Lehartel [1993] 1 NZLR 578 (HC); Q v B [Custody] [2005] NZFLR 337; CG v SG (2005) 24 FRNZ 502.

[32] In Lehartel v Lehartel Tompkins J considered an application under the Guardianship Act 1968 by the father to have an application for custody determined in a Tahitian Court and not in the Family Court of New Zealand. The Family Court had held the mother and child were to return to Tahiti and the Court in Tahiti was to decide the issue of custody and other matters. The mother appealed from that decision. This was not a case where the Hague Convention applied. In considering the matter Tompkins J noted under s5 of the Guardianship Act the Family Court had jurisdiction where the child who was the subject of the application or order was

present in New Zealand when the application was made. After considering s23 of the Act which directed that the welfare of the child was the first and paramount consideration when determining any application under the Act, Tompkins J held the issue was not one of jurisdiction but whether in all the circumstances and having regard to the child’s welfare as the first and paramount consideration the Court had correctly exercised its discretion by requiring the child to be taken back to Tahiti. He upheld the decision of the Family Court.

[33] In CG v SG Callinicos FCJ reviewed various cases under the Guardianship Act where the issue of the appropriate forum was decided. At paragraph 34 of his judgment he stated:

[34] From those various cases I have distilled the following as being the key principles applying to forum conveniens applications in the context of child issue cases:

the overriding consideration in all cases must be the objectives of the statutory provision under consideration, in this case s23 of the Guardianship Act. The decision of which forum is best capable of achieving a decision must be framed on the best interests of the child.

the onus rests on the party seeking foreign adjudication.

the burden of showing greater suitability of the other jurisdiction is not merely to show New Zealand is not the natural or appropriate forum but to establish the foreign forum is “clearly and distinctly more appropriate”.

in reaching the decision the Court must not be reactive to the conduct of the parent removing or retaining the child, but on what is in the best interests of the child.

the issue is not one primarily the jurisdiction but whether, in all the circumstances, and having regard to the child’s welfare as the first and paramount consideration, the foreign Court or New Zealand Court is best able to determine all custody access and related questions.

although the Hague Convention does not apply (because Malaysia is not a signatory) it is appropriate for the Court to have regard to its policy.

I am of the view that the Court must also recognise the import of the United Nations Conventions on the right of the child (“UNROC”), particularly as both New Zealand and Malaysia have either accepted it or ratified it.

[34] In formulating those principles Callinicos FCJ also noted a range of considerations including but not limited to the following factors:

The trial mechanics and evidentiary considerations

Timeframe for determination Personal circumstances Where is the child living

Connection with each country

Qualitative comparison with competing jurisdictions Genuine proceedings or juridical advantage? Enforcement

Existing or proposed concurrent proceedings and effect of different outcomes

Submission to jurisdiction.

[35] Although these decisions relate to proceedings under the Guardianship Act

1968 I consider a similar approach still applies under the Act where the focus is on the welfare and best interests of the child being the paramount consideration.

Submissions and Findings

[36] Ms Leech submitted the appropriate forum for determination of DS’ application was the Family Court of Australia. She argued the New Zealand Family Court had no jurisdiction to make an order preventing the removal of the children from New Zealand. I advised her at the time of that submission I considered the Court did have jurisdiction in terms of s77(2)(b) given the history of the proceedings, the fact that DS had filed an application effectively seeking a parenting order and the children were due to leave New Zealand on 28 January 2006. The combination of factors satisfied the criteria contained in s77(2)(b).

[37] Ms Leech produced a copy of an email from the New Zealand Central Authority dated 24 January 2006. The Authority advised Ms Leech it had been contacted by the Central Authority of Australia which had expressed concern at recent events and had advised if the children were not returned to Australia on 28

January 2006 as scheduled consideration would be given to the filing of applications

for return of the children retained in another state in accordance with the Hague

Convention.

[38] Mr Dean argued the Hague Convention had no application. He noted the provisions of s105 and particularly s105(1)(b) which referred to a child being removed from another contracting state in breach of that person’s rights of custody in respect of the child. He argued the children had not been removed from Australia in breach of JP’s rights. The Family Court of Australia had authorised the children coming to New Zealand. In those circumstances JP was not able to make an application under s105 for the return of the children to Australia.

[39] Mr Maude also submitted in those circumstances it could not be said they had been wrongly detained by DS in New Zealand thereby enabling JP to make an application under the Hague Convention for their return to Australia. He agreed with Mr Dean there had not been any wrongful detention of the children pursuant to s105(1)(b) of the Act. The children were only remaining in New Zealand because of a decision by the Court and not by DS.

[40] After reviewing the provisions of s105(1)(b) I accept the submissions of Mr Dean and Mr Maude that it does not appear the Hague Convention has any application in this case if the children have not been wrongfully retained by DS. The legal reality is the children had been prevented from returning to Australia by an order preventing their removal made by me on 20 January 2006. I also accept Mr Dean’s submission the Court must consider the application of s4, which takes into account the principles under s5 of the Act, and s126 of the Act.

[41] Under s126(1)(b) the Court has jurisdiction under the Act where the child who is the subject of the application or order is, when the application is made, present in New Zealand. In this case it is clear the children were in New Zealand when DS made the application.

[42] Despite s126(1) under s126(2) the Court may decline to make an order

a) if neither the person against whom it is sought nor the child is resident in New Zealand, and

b) the Court is of the opinion no useful purpose would be served by making an order or that in the circumstances the making of an order would be undesirable.

[43] In exercising this discretion under s126(2) the Court must keep in mind the welfare and interests of the children are paramount. Section 126 alone does not determine the issue.

[44] In this case Mr Dean submitted the making of an order preventing the children from returning to Australia and varying the parenting order pending a defended hearing would clearly have a useful purpose. He relied upon the following factors:

1. JP had blatantly frustrated DS’ contact with the children and had persistently breached the Family Court order. There was no reason to think she would not continue to do this. DS no longer trusted her.

2. JP had moved houses and had not provided DS with the children’s contact details contrary to the Court order. There was no reason for the Court to think she would not continue to do this.

3. JP had been influencing the children on those occasions when DS had been able to telephone them.

4. DS had not been able to get full information about the children’s schooling. JP had not kept him informed about their schooling contrary to the Court order.

5. There were concerns about D’s performance at school and the children’s unsatisfactory attendance records.

6. There were concerns about

JP’s partner ill-treating D. Cramped living conditions. Hygiene concerns for the children.

[45] In noting these factors Mr Dean argued the New Zealand Family Court had all the relevant information on the file as the previous applications had been dealt with in New Zealand. There was concern if the Court directed the matter be determined in the Family Court of Australia further delays would occur enabling JP to further relocate and conceal her whereabouts.

[46] Mr Dean expressed concern as the result of JP’s wilful non-compliance with orders DS had incurred considerable expenses trying to enforce the Court orders.

[47] Ms Leech addressed the issue of residence noting JP and the children had lived in Australia since the end of 2003. Issues relating to their accommodation and education could be more appropriately addressed in the Family Court of Australia. Mr Maude agreed if domicile was relevant then F, Australia was clearly the children’s domicile as they had been living there at all times other than for the purpose of contact pursuant to the order made by the Family Court of Australia.

[48] After considering these submissions I have determined the appropriate forum is the Family Court of Australia. In exercising the discretion under s126(2) I considered these factors relevant:

1. When the orders were made by consent in New Zealand on 23 August

2002 and 17 September 2004 the parties clearly intended the law of B, Australia would apply. In reaching that decision it was specifically recorded in the consent memorandum dated 1 September 2004 that the habitual residence of the children would be in Australia.

2. The children have resided with JP in Australia since the end of 2003.

They have attended schools in Australia and have relationships with the other members of JP’s family.

3. In any defended application relating to care arrangements for the children it is likely there will be more witnesses in Australia required to give evidence than would be the case in New Zealand.

4. Although proceedings were initiated in New Zealand there has not been any defended hearing in New Zealand. The affidavits filed in the New Zealand Family Court file set out historical matters but the contents of those affidavits have not been tested in a defended hearing. No findings have been by the Family Court of New Zealand in a defended hearing.

5. Any expert assessment required in determining the care application can be easily carried out in Australia in the same way as it would be in New Zealand.

6. I well understand the considerable anguish expressed by DS over what he considers to be the blatant disregard by JP of the orders made in the Family Court of New Zealand. Although the affidavit evidence of the parties was not tested at the hearing on 26 January 2006 I was left with the clear impression there was substance to DS’ concerns. He has documented in detail the efforts he has made to have contact with the children. The affidavit filed by JP on 25 January 2006 is somewhat vague and does not reply in full detail. Mr Dean provided a chronology of difficulties in establishing contact with the children for the period 17

September 2004 to 19 December 2005. If it is found that chronology is correct then undoubtedly JP has failed to comply with the New Zealand Court orders. Her affidavit evidence failed to give detailed reasons as to why she could not keep DS informed of the children’s whereabouts and comply with her obligations under the New Zealand Court orders. In setting out these matters, however, I am conscious of the observation made in the cases I have referred to that the Court must not be reactive to the conduct of the parent removing or retaining the child but must focus on what is in the welfare and best interests of the child.

7. As noted when reviewing the legal principles it is appropriate for the Court to have regard to the policy of the Hague Convention even in situations where it does not apply. I accept Mr Maude’s submission that if this was a case that fell within the provisions of the Hague Convention it is unlikely DS would have been able to successfully raise a defence available pursuant to s106 of the Act. In making that submission he noted JP had not acquiesced to the retention of the children in New Zealand, the children had not expressed a view and the allegations made by DS in his affidavit fell well short of establishing “grave risk”.

8. The concerns expressed by DS about the welfare and best interests of the children can be properly examined in the Family Court of Australia.

[49] When weighing the factors I have set out in paragraph 48 I also took into account if an order was made keeping the children in New Zealand, that order would disrupt the status quo of the care arrangements which have existed since the parties separated. After separation the children remained in the care of JP and have remained in her care from the time they moved to Australia at the end of 2003. In that context I do not consider the concerns expressed by JS would justify the Court disrupting the status quo when that evidence still remains to be tested. Although it does appear JP has not complied with Court orders such non-compliance does not alone justify the proceedings being determined in the Family Court of New Zealand.

[50] I consider DS’ application for a parenting order in respect of both children can be dealt with in the Family Court of Australia in much the same way as it would be in the Family Court of New Zealand. Australian Family Law Jurisdiction is similar to that of New Zealand. Overall I do not consider DS would be disadvantaged by proceeding in the Family Court of Australia. I accept he may incur further costs but that is an issue which can be considered by the Family Court of Australia whatever the outcome of these proceedings.

Decision

[51] For the reasons I have set out I am satisfied the appropriate forum for determination of the application by DS for a parenting order is the Family Court of Australia. The order preventing the removal of the children from New Zealand is discharged accordingly.

[52] Ms Leech applied for costs. I decline that application. On the information before the Court the application by DS was justified in all the circumstances despite the fact it was unsuccessful for the reasons I have set out. I consider any application

_{for costs by DS should be made to the Family Court of Australia.}

Judge A P Walsh

Family Court Judge

Signed at am/pm on 2006