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Harper v Hodges [2013] NZFC 7733; (2013) 29 FRNZ 571 (20 September 2013)

Last Updated: 14 December 2018

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE FAMILY COURT AT CHRISTCHURCH

FAM-2013-009-1238 [2013] NZFC7733

IN THE MATTER OF THE CARE OF CHILDREN ACT 2004

BETWEEN Pamela Harper

Applicant

AND Nathan Hodges

Respondent

Hearing: 16 September 2013

Appearances: J A Mehrtens for the mother

S Holder for the father

A Gartner for the children

Judgment: 20 September 2013

_{RESERVED DECISION OF JUDGE D G SMITH}

HARPER V HODGES DC CHCH FAM-2013-009-1238 [20 September 2013]

[1] On 16 May 2013 the applicant mother applied without notice for a parenting order and also for an order preventing the removal of Roy Hodges, born 10 October 2008 (aged four) and Julia Hodges, born 9 May 2010 (aged two) from New Zealand and from Canterbury. On the same date an application for orders to resolve disputes between guardians was filed seeking determination of the children’s place of residence and place of schooling.

[2] On that day, 16 May 2013, an order preventing removal of the children from New

Zealand was made. The parenting application was put on notice by the Court.

[3] On 20 May 2013, the respondent father, as applicant, made a without notice applications for a parenting order and for a warrant to enforce the parenting order. The affidavit in support was sworn on 16 May 2013. The Court required the applications to be on notice.

[4] On 22 May 2013 the mother filed a notice of defence to the father’s applications. An affidavit in support of the notice of defence dated 21 May 2013 was filed at the same time.

[5] On 28 May 2013 the father filed a notice of defence to all the mother’s applications.

[6] On 30 May 2013 the father gave notice of a change of solicitor. A further affidavit by him in support of this notice of defence was filed on 30 May 2013 dated 28 May 2013.

[7] In this second affidavit of the father, he states at paragraph 25:

I believe that the children should be returned to the Cook Islands to determine their substantive care arrangements. This is where they have been living before Pamela’s unilateral actions to retain them in New Zealand. There is a Court in the Cook Islands and they are able to deal with parenting matters.

[8] On 28 June 2013 the father filed an application for suspension of the interim order preventing removal and an affidavit dated 28 June 2013 in support.

[9] In paragraph 4 of that application the father states:

I am seeking an order suspending the order preventing the removal of the children from New Zealand dated 16 May 2013 for the period 30 June 2013 to 9 July 2013 so that the children may travel with me to Rarotonga to celebrate a family event as

outlined below. At the conclusion of this period the children will be returned to New

Zealand pending the outcome of the current Court proceedings.

[10] By consent the Court ordered the order preventing the removal of the children from

New Zealand be suspended between 30 June and 9 July 2013.

[11] On 6 June 2013 Judge C P Somerville, at a Judicial Conference to progress this matter, made the following minute:

[1] Before there can be any further steps in these proceedings, there needs to be a judicial decision concerning jurisdiction. Both parties have made applications in New Zealand, but Mr Hodges contends that this is really a matter that should be determined by a Judge in the Cook Islands where the parties lived until recently.

[2] There need be no further affidavit evidence filed on this issue and it is ready for hearing. The registrar is directed to find two hours of hearing for the argument. Counsel are to file written submissions. As Ms Holder will be supporting the suggestion that there is no jurisdiction, she should file her submissions 10 days before the fixture and Ms Mehrtens can file her submissions in reply three days before the fixture. Counsel are also to file and exchange a bundle of authorities.

Background

[12] It should be noted that the hearing before me was a submissions only hearing. Consequently the affidavit evidence by the two parties is at variance on some issues and the veracity of the mother and father has not been tested by way of cross examination.

[13] The parties began a relationship in 2007. Both their children were born in New Zealand and are New Zealand citizens. They both hold New Zealand passports. I was told from the Bar they are also Cook Island citizens. There is nothing in the evidence which supports that statement but it was not challenged by any counsel.

[14] Shortly after the Canterbury earthquakes in early 2011 the parties and their children left for the Cook Islands for a holiday to visit the father’s family. While they were there they decided to stay on. The mother states that she returned to Christchurch in April 2011 to settle their property affairs and returned to the Cook Islands in May 2011. The father and children stayed with his family while she was away.

[15] The mother’s evidence is that in November 2011 she and the father agreed that they would relocate back to New Zealand in January 2012. She says they agreed that she would

return to Christchurch, first to set up the family home and find employment and that the father and children would follow in January 2012.

[16] The father’s evidence does not directly contradict this though he puts a different slant on it saying “the reason why we had looked at moving back was due to Pamela’s grand plans and promises.”

[17] The mother’s evidence is that she left the Cook Islands for the purpose she stated and returned to Kaiapoi. She says she found a home for the family and found employment. Her family was close by so that their transition would be made easier. She says that she was continually making calls to the father and the children to see how they were.

[18] On 7 January 2012 the mother’s evidence is that he telephoned her to say that he would not be returning to New Zealand with the children and that their relationship was over. This appears to be accepted by the father as correct.

[19] The mother returned to the Cook Islands hoping to reach an agreement with the father that the children would return with her to New Zealand. Her evidence was that he would not listen and that there was no discussion. She felt pressure from him and found it difficult to see the children. The mother’s evidence was that the father had taken control and he told her when she could see the children. She swore that she was prepared to stay in the Cook Islands and share the care of the children but she says the father would not listen and even consider this.

[20] As a result of this the mother’s evidence was that she could not find a job in the Cook Islands and in the end because she was so disheartened and stressed, decided to return to New Zealand where her family support was. She says that prior to leaving they agreed the children would return with her for her sister’s wedding. An argument ensued. Her evidence was that she was told by the father that if she wanted to see the children she would have to pay for all the flights etc. She states that the next day the father and his father turned up at the motel they were staying at and said that she had to sign an agreement they had prepared and that if she did not sign she would not be able to take the children. A copy of that agreement is annexed to her affidavit. The mother’s evidence was that she had not seen the agreement before and had no way of obtaining legal advice. She says she felt that she had to

sign it, which she did. She thought that at this time it would at least allow her to see the children during the Cook Islands school holidays.

[21] The mother further attests that at the last school term holidays in April 2013 she returned to the Cook Islands to collect the children for the holidays. The father presented her with the same agreement with amended dates. She again says that she felt she had no option but to sign otherwise he would not allow her to see the children and bring them back to New Zealand.

[22] Consequently the mother returned to New Zealand with the children. It was then that she took legal advice and had sought to make the applications that she has.

[23] The father’s evidence is that the agreements which were entered into were signed freely by the both of them and that Pamela’s mother and his father were present when they were talking about it and signed the agreement.

[24] The father attests that he considers Rarotonga to be the children’s place of residence and that they have been there for two years. He says the children were settled there, attending pre-school and Roy is getting ready to start school in October. His parents also live in Rarotonga and they currently live with them. He also has an aunt and uncle living there. He has a good job in Rarotonga as well as a (new) partner.

[25] In his affidavit of 28 May 2013 the father states that the children are better to be returned to the Cook Islands, which has been their home for the majority of their lives. He says that Roy was only two and a half years old when they moved to the Cook Islands and Julia was not even one. He says the children see themselves as Cook Islanders but are very aware of their New Zealand Maori heritage.

[26] One of the issues raised by the mother was Roy’s health. He has a heart condition, super ventriculer tachycardia. He receives specialist advice here in Christchurch and her concern is that the level of care in the Cook Islands will not be enough for Roy. The father’s view is that Roy sees the doctor regularly in addition to a specialist who visits once a year and that their doctor can refer them directly to Starship in Auckland. He makes the point that

the medical records have always been in Christchurch and they are able to be directly accessed without issue from the Cook Islands.

The issue

[27] Judge Somerville in his minute refers to the question of jurisdiction being required to be determined. I am of the view that he referred to it that way because that is what was raised by counsel. They all commenced their written submissions on the basis of the hearing concerning a jurisdictional matter.

[28] There can be no argument that the New Zealand Courts have jurisdiction to determine the question of parenting arrangements for these children.

[29] Section 126 Care of Children Act 2004 states:

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.

[30] As both the mother and the children are presently present in New Zealand, jurisdiction is conferred by s 126(1)(b) and (c).

[31] The real issue is whether the Court is of the opinion, as per section 126(2)(b) that in the circumstances the making of an order would be undesirable. That arises if the New Zealand Family Court is found to be a forum non conveniens.

[32] In Lehartel v Lehartel [1993] 1 NZLR 578, Tompkins J, in respect of proceedings relating to a child to be taken back to Tahiti said:

So the issue is not one of jurisdiction. The issue becomes whether, in all the circumstances as they existed here, and having regard to Brian's welfare as the first and paramount consideration, the court correctly exercised its discretion by, in effect, requiring Brian to be taken back to Tahiti so that the court in Tahiti could determine all custody, access and related questions.

[33] Tompkins J’s decision was prior to the Care of Children Act 2004 coming into effect. That does not change the approach. This matter needs to be determined in accordance with s 4 of that Act which states:

4 Child's welfare and best interests to be paramount

(1) The welfare and best interests of the child must be the first and paramount consideration—

(a) in the administration and application of this Act, for example, in proceedings under this Act; and

(b) in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.

(2) The welfare and best interests of the particular child in his or her particular circumstances must be considered.

(3) A parent's conduct may be considered only to the extent (if any) that it is relevant to the child's welfare and best interests.

(4) For the purposes of this section, and regardless of a child's age, it must not be presumed that placing the child in the day-to-day care of a particular person will, because of that person's sex, best serve the welfare and best interests of the child.

(5) In determining what best serves the child's welfare and best interests, a Court or a person must take into account—

(a) the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child's sense of time; and

(b) any of the principles specified in section 5 that are relevant to the welfare and best interests of the particular child in his or her particular circumstances.

(6) Subsection (5) does not limit section 6 (child's views) or prevent the Court or person from taking into account other matters relevant to the child's welfare and best interests.

(7) This section does not limit section 83 or subpart 4 of Part 2.

[34] I was referred to the principles set out in s 5 of the Act by counsel. I see those as relevant to the enquiry at the substantive hearing and not of assistance to this enquiry.

[35] I note that the child’s views as per s 6, either directly or through a representative, must be taken into account. The child must be given reasonable opportunities to express view on the matters affecting the child. Here, the children are of such a young age, particularly the youngest child, that they are incapable of fully understanding the issue which is to be determined here. To ask their view would be of no assistance to the Court.

The father’s application and submissions

[36] There has been no formal application in respect of this hearing. It has been held in response to matters raised in the affidavits and is properly a matter that needs to be cleared out of the way before any substantive proceedings are brought on for hearing, whether here or in the Cook Islands.

[37] The lack of a formal application however, has led to a lack of focus as to what needs to be established, particularly by the father. In the father’s counsel’s submissions the issues are stated as:

The issue of the determination is whether the New Zealand Court has jurisdiction to hear the substantive matter. The respondent seeks that the matter be transferred to the jurisdiction of the Cook Islands where the children were habitually resident before their removal. He states that this is the most appropriate forum to hear the substantive care mater (sic).

[38] Counsel for the father submits:

1. The Cook Islands are not a Contracting State to the Hague Convention on the civil aspects of international child abduction and consequently no application under s 105 Care of Children Act can be made.

2. A person may submit to the jurisdiction by agreement or by taking a step in the proceeding which is necessary or useful only if the Court does have jurisdiction. [As I have stated above the Court does have jurisdiction].

[39] Further, it is submitted, a defendant probably does not submit to New Zealand jurisdiction by applying to have the proceeding stay on the grounds of forum non conveniens providing that an appearance objecting to jurisdiction has been filed. The use of the words “probably does not” is disconcerting, particularly when counsel for the father accepts that the onus to establish this matter is on her client. It also highlights that there has been no application to stay the proceedings and there has been no appearance objecting to the jurisdiction filed. Ultimately, counsel relies upon the fact that even if the Court has jurisdiction, the Court may decline to make an order if there is no useful purpose to be served by making the order.

[40] Counsel then submits that where proceedings are brought in a New Zealand Court or the defendant has submitted to the jurisdiction of the New Zealand Court, the defendant may apply to the Court for an order staying the proceedings in New Zealand on the grounds that there is another Court with jurisdiction to hear and determine the matter, in which the proceedings could be more suitably tried in the interests of the parties. (District Court Rules

1992, Rule 481.)

[41] The difficulty with that submission is that there has been no application made on any of those grounds. Even if they were, the District Court Rules are subordinate to the Care of Children Act. Further, s 5(1) of the Family Court Rules 2002 provides that:

All proceedings in a Family Court must be brought and dealt with in accordance with these rules, except to the extent that the family law Act under which they are brought provides for them to be brought or dealt with under some enactment other than these rules.

[42] While some of the District Court Rules apply in the Family Court, Rule 481 is not one of them.

[43] Finally, counsel for the father relies upon AND v MMN (Family Court, Christchurch, 8

July 2011) a decision of Judge E Smith.

[44] The approach taken by Her Honour accords with the view that I have stated above. At paragraph [54] she stated:

In my view, the required and binding approach on the Family Court where there is a dispute as to the proper forum for the determination of a custody or day to day care cases, where the Hague Convention does not apply, is to inquire as a first step whether the New Zealand court should finally determine the matter having assessed whether it is in the best interests of the child for such issues to be decided in the jurisdiction from which he or she has been removed.

[45] In February 2005 Judge Callinicos in CG v SG 24 FRNZ 502 considered a matter relating to New Zealand parents whose child had been born in April 2000 and then moved in July 2001 to Malaysia for the father’s work. In October 2002 the mother returned with the child to New Zealand as her father was unwell. She then elected to remain in New Zealand with the child without the father’s agreement. In December of that year the father returned to New Zealand and while C was in his care, returned to Malaysia taking the child with him without the mother’s consent. The child remained in Malaysia since January 2003 and the father made it clear that would not be bringing the child back. Having commenced applications in the New Zealand Courts, and which had been underway for some time, the father then suddenly filed an application for a declaration that the New Zealand Family Court was forum non conveniens.

[46] Beginning at paragraph [30] of his decision, Judge Callinicos examined the law concerning the approach in the New Zealand Courts on the issue of forum non conveniens. His Honour referred in particular to Lehartel v Lehartel (ibid) and that Panckhurst J in N v O [2004] NZFLR 926 was “in no doubt” that Lehartel remains the correct approach.

[47] From his consideration of the case law, Judge Callinicos distilled what he regarded as the key principles applying to forum conveniens applications in the context of child issue cases. I note that Her Honour Judge E Smith relied on and followed Judge Callinicos’ analysis in her decision of AND v MMN. I also take the view that His Honour Judge Callinicos’ analysis is correct.

[48] His Honour said:

[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 s 23 of the Guardianship Act. [The equivalent section now is s 4, Care of Children Act 2004] 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 of 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 the 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 Rights of the Child (“UNROC”), particularly as both New Zealand and Malaysia have either accepted it or ratified it.

[35] In determining the application according to those principles, the Court may draw from a range of considerations including, but certainly not limited to:

• trial mechanics and evidentiary considerations,

• timeframe for determination,

• personal circumstances,

• where is the child living?

• connection with each country,

• qualitative comparison of competing jurisdictions,

• genuine proceedings or juridicial advantage?

• enforcement,

• existing or proposed concurrent proceedings and effect of different outcomes,

• submission to jurisdiction

[49] His Honour Judge Callinicos then considered each of the various factors in terms of the particular circumstances of the case that was before him. It is appropriate that I follow the same course in respect of the matter now before me.

Trial mechanics and evidentiary considerations

[50] There was no evidence filed by Mr Hodges in respect of the issue of trial mechanics. This is probably unsurprising given that no formal application had been made. Nonetheless, once it was apparent by Judge Somerville’s minute that this matter was to be considered by way of the hearing before me it was incumbent upon counsel to address that defect or at least raise the issue of the need to do so before the hearing.

[51] All I have before me are counsel’s submissions, despite the father’s counsel referring to both Judge E Smith and Judge Callinicos’s decisions which make clear what needs to be addressed.

[52] In the written submissions before me Mr Hodges’s counsel submitted that the filing of the proceedings in the Cook Islands jurisdiction would be able to occur quickly and the matter can be heard in a timely fashion in that jurisdiction. It is of note that there are no proceedings in the Cook Islands as at the time of hearing before me.

[53] It was further submitted that the proceedings could be more suitably tried in the Cook Islands. It was stated the resident Cook Islands Judge is from New Zealand. The Court can sit in either New Zealand or the Cook Islands. The Court Registrar in the Cook Islands has informed the respondent (the father) that Judge Grice is due to hear High Court matters between 25 November and 6 December 2013. In addition, Chief Justice Tom Weston is currently in the Cook Islands. It is also possible to have High Court matters heard by teleconference with a Judge in New Zealand, resulting in less costs to the applicant. It was further stated that the father had confirmed that he will file in the Cook Islands Court as soon as possible.

[54] The difficulty I have with these submissions is that they are essentially hearsay and evidence from the Bar. In such matters as this the need for verifiable information is required. While Judge Grice may well be sitting in the Cook Islands between 25 November and 6

December, I have no way of telling whether Her Honour’s list is full or not.

[55] The suggestion that the Cook Islands Judge would be in New Zealand hearing the matter by way of telephone raises the question as to why a New Zealand Family Court would decline to exercise its jurisdiction in favour of a foreign Court which then operated from New Zealand. Further, I have no way of telling whether teleconferences are permitted for substantive hearings or only for interlocutory matters.

[56] Mr Hodges’s counsel submitted that neither party has at this time filed further witness affidavits but his parents intend to file in support of the substantive issues. They reside in the Cook Islands. It was submitted that it would easier for the majority of the witnesses if the matter is held in the Cook Islands. It is noted that the mother has stayed with friends when she has visited the Cook Islands since the parties separated.

[57] Given that I have no idea as to which witnesses are going to be filing further affidavits, it seems to me that the question of additional witnesses beyond the two parties is a neutral factor. If the proceedings are held in either country, one set of witnesses will have to travel unless the Court is prepared to have the witnesses give their evidence by AVL or some other means. It is possible, of course, that opposing counsel may not wish to cross-examine the deponents outside the parties.

Timeframe for determination

[58] Counsel for the father submits that it has taken some four months for this hearing on the issue of jurisdiction to be allocated and that there is likely to be a significant delay in hearing the substantive matter in the Christchurch Family Court. She submitted that this delay is unlikely to occur in the Cook Islands. As will be clear from my comments above, I am struggling to understand the basis on which that last submission can be substantiated. Proceedings have not been filed in the Cook Islands yet. Service would have to take place, there would have to be opportunities for responding affidavits to be filed and supporting affidavits to be filed and affidavits in response. I am not persuaded that proceedings in the Cook Islands will be dealt with more quickly, particularly as I have the ability to make a tight timetable in respect of this proceeding with an aim to having it set down for hearing as soon as possible.

Personal circumstances

[59] The evidence which has been filed to date raises questions as to the financial viability of either party. Indeed, I suspect that the genesis of this ‘application’ by the father is due to the financial strain that he feels by having to appear in New Zealand.

[60] The reverse obviously applies in respect of the mother.

[61] I note that both parties have legal aid in New Zealand. It appears to be accepted by counsel that there would be no such facility available to the parties for the proceedings in the Cook Islands.

[62] It is possible that one or if not both of the parties may end up being unrepresented if the proceedings are held in the Cook Islands. This factor would appear to be in favour of the proceeding remaining in the New Zealand Family Court.

Where is the child living?

[63] As stated by Judge Callinicos in CG v SG at para [49]:

[49] In a forum non conveniens case the Court has to have reference to where the subject matter of the particular proceeding is located.

The subject matter here is, of course, the two children. They are clearly in New Zealand at this time.

[64] Counsel for the father submits however that the Cook Islands are the children’s habitual residence. The term “habitual residence”, is contained in s 105(1)(d) Care of Children Act 2004. This is the section which puts into effect the Hague Convention in respect of abducted children. It is necessary for an application under s 105 that the child be habitually resident in that other contracting state immediately before the removal of the child.

[65] Counsel’s submission that the two children here were habitually resident in the Cook Islands is presumably made to strengthen her submission that the Hague Convention, although not in force in the Cook Islands, is a matter which should be taken into account in determining which Court determines these proceedings.

Were in fact the children habitually resident in the Cook Islands as the father submits?

[66] The children went to the Cook Islands when they were three years and eight or nine months old respectfully. They returned to New Zealand in April 2013 having spent approximately two and a quarter years in the Cook Islands. They have now been in New Zealand for a further five months. In respect of the older child Roy, he had spent 57% of his life in New Zealand prior to his return with his mother. His younger brother however had spent approximately 75% of his time in the Cook Islands prior to his return to New Zealand. Time alone therefore is not a direct indicator as to what the children’s (collectively) habitual residence is.

[67] Residence is not defined in the Care of Children Act. In the Laws of New Zealand, there is a discussion of the definition of “residence” in general terms but not specifically related to children. The terms “residence”, “ordinary residence”, and “habitual residence” have no particular significance as a matter of common law, but are used as a connecting factor in some statutes. “Residence” or “ordinary residence”, unlike “domicile”, have no fixed meaning, and care needs to be taken in using a definition for the purposes of one statute in connection with another. In the absence of a statutory definition, the ordinary meaning of the words should be used, and care should be taken to avoid introducing the refinements and technicalities associated with the concept of domicile.

[68] Generally, “residence” means:

...physical presence other than casually or as a traveller. That presence must be voluntary. The person must have some intention to remain in the country for a settled purpose, but the intention may be to remain for a limited time only. A person may continue to be resident in a country despite a temporary absence. It is possible to be simultaneously resident in two or more countries for certain purposes. A person may, in the absence of a settled abode, have no country of residence at all.”1

[69] There is no substantive definition of “habitual residence” in either the Care of Children Act or the Hague Convention. It is thought that this omission is intentional, as discussed in Dicey and Morris on the Conflict of Laws:2

No definition of habitual residence has ever been included in a Hague Convention;

_{this has been a matter of deliberate policy, the aim being to leave the notion free from}

1 _{At Conflict of Laws: Jurisdiction and Foreign Judgments, Part II , Chapter 8, at 107.}

2 (13th ed, Sweet & Maxwell, London, 2000) vol 1 at 149-150

technical rules which can produce rigidity and inconsistencies as between different legal systems. In those contexts, the expression is not to be treated as a term of art but according to the ordinary and natural meaning of the two words it contains.

[70] The Court of Appeal decisions of Punter v Secretary for Justice [2003] NZCA 306; [2004] 2 NZLR 28,

SK v KP [2005] 3 NZLR 590, P v Secretary for Justice [2007] 1NZLR 40, (2006) 25 FRNZ

327; Basingstoke v Groot [2007] NZFLR 363, (2006) 26 FRNZ 707 (CA) and Harper v Johnson [2008] NZCA 131; [2008] NZFLR 775 (CA) are authority for the proposition that enquiry into habitual residence is a broad and purely factual determination. It is primarily a question of fact to be decided by reference to the circumstances of each case.

[71] Contrary to the submission made by Ms Mehrtens for the mother, a child can have no more than one habitual residence at any one time. (See Basingstoke v Groot at para [10]; P v Secretary for Justice at para [212]; and Punter v Secretary for Justice at para [75].)

[72] It is however possible to have no habitual residence. (See Basingstoke v Groot at para [10]; P v Secretary for Justice at para [129]; SK v KP at para [73] and Punter v Secretary for Justice at para [75]).

[73] At paragraph [66] of Punter v Secretary for Justice (ibid), Glazebrook J stated:

[66] In terms of the principles that have been articulated, an important concept has been that of settled purpose. It has thus been said that, if a person has a settled purpose to leave the place of his or her habitual residence and does so in accordance with that purpose, then the former habitual residence is lost immediately. The new place will only become an habitual residence, however, if there is both a settled purpose to take up that habitual residence and residence for an appreciable period. I refer in this regard to the oft-quoted dicta of Lord Brandon in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, 578-9 He said:

In considering this issue it seems to me to be helpful to deal first with a number of preliminary points. The first point is that the expression

‘habitually resident’, as used in article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood

according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or

is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person

ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be

habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long–term

residence in country B instead. Such a person cannot, however, become

habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.

[74] As Glazebrook J made clear in para [67]:

The settled purpose does not have to be a settled purpose to reside in a place forever, but can be a settled purpose to reside in a place for a limited period.

[75] The question becomes more difficult however, where there are children involved. This was recognised by Glazebrook J at paras [70] to [73]:

[70] It has been recognised that the concept of settled purpose is a difficult one where young children are involved in that, even if they were old enough to have a settled purpose, they would not be in a position independently of their caregivers to carry that purpose into effect. It has thus been held that the settled purpose of the young child is necessarily that of the parents or the person or persons able to exercise the right to decide where a child will reside – see for example In re J (A Minor)(Abduction: Custody Rights) [1990] 2 AC 562 at 504 and Dickson v Dickson [1990] SCLR 692 at 703.

[71] Ascertaining purpose requires an examination of the subjective intent of the parents but it is necessary, as the court put it in Armilleato v Zuric-Armilleato US DC SDNY 01 Civ 0135, 3 May 2001, para 47 to look at the “objective manifestations of the intent”. This is especially so as Hague Convention cases should be conducted in a manner that will secure a prompt return of the children. Oral evidence and cross- examination are thus usually limited to what is absolutely necessary – see eg the comments in Re F (A Minor) Child Abduction) [1992] 1 FLR 545, 552 (CA). This approach is also taken in New Zealand - see, for example, Marsden v Marsden (1995)

13 FRNZ 27, 30; Ryding v Turvey [1998] NZFLR 313, 321 and Fisher v Fisher FP

011/60/99 FC WHA, 15 February 2000.

[72] Where both parents have rights of custody, the decision of one parent unilaterally to change his or her habitual residence does not change the habitual residence of the child, even if that parent is the parent having the day to day care of that child. This appears as much as anything a principle that arises out of the policy of the Hague Convention. One of the aims of the Convention is to deter international abductions. To allow the habitual residence of the child to be changed unilaterally by the abducting parent would be counter to this – see in this regard for example Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993, 995 per Waite J and Re A [1995] 1

FLR 767, 771 per Hale J. She said:

It stands to reason that [the] Convention could not operate were one parent to be able, unilaterally, to change the habitual residence of the child because the whole purpose of the Convention is to stop parents doing just that.

[73] In terms of what is an “appreciable period of time”, Morritt LJ in Nessa v Chief Adjudication Officer [1998] EWCA Civ 164; [1998] 2 All ER 728, 743 said (again in another context) that what is an appreciable period of time will depend on the facts of each case. All

that is required is “what is necessary to give to the fact of residence the quality of

being habitual in accordance with the normal meaning of that word”.

[76] In applying the above law to the facts of this case, there is no dispute that the parties and their family went to the Cook Islands in early 2011 for a holiday and while they were there they decided to stay on. The mother returned in April 2011 to settle property affairs and return to the Cook Islands in May 2011. The children remained in the Cook Islands at that time.

[77] In November 2011 the mother’s testimony is that they both i.e. mother and father, agreed that they would relocate back to New Zealand in January 2012. Her evidence was that she would arrange accommodation and that the father and children would follow in January

2012. It was for that purpose that she left the Cook Islands and if her testimony is accepted, and it is not denied in the affidavits filed by the father, then while the children were resident in the Cook Islands it could not be said that was their habitual residence as they were not settled there and were intending to return to New Zealand. In January 2012 the father then made it clear that he had no intention of their relationship continuing and retained the children in the Cook Islands.

[78] There were no orders in favour of either parent at that time and the father’s action was unilateral. While the children were with him he alone was not capable of making guardianship decisions unilaterally.

[79] In his affidavit of 16 May 2013, the father stated that the mother could not settle in Rarotonga and kept moving back and forth from Rarotonga and New Zealand. If that description by the father is correct, then at no time was the children’s residence in the Cook Islands settled by their parents.

[80] The conclusion that I come to is that the children in this matter no longer have habitual residence due to the split between the parents and the way in which it occurred. They will obtain a habitual residence in due course once the substantive proceedings between the parties are concluded.

[81] The effect of my conclusion is that the policy of the Hague Convention does not play a part in my determination as to the forum conveniens.

[82] As a post script to the above I accept it is entirely open to the Judge hearing the substantive proceeding to reach a different conclusion as to the children’s habitual residence as he or she will have the advantage of hearing the cross examination of the witnesses.

Connection with each country

[83] There is little doubt that the children have a connection with both the countries involved here and this is a neutral factor. Their connection is, in practical terms, equal to both New Zealand and the Cook Islands.

Qualitive comparison of competing jurisdictions

[84] For the reasons I have given previously, it is clear that I can make no assessment as to the qualitive comparisons between the two jurisdictions. All I have are submissions from counsel with no evidential matters put before me at all. I accept that the Cook Islands have a judicial system and that in all probability the legislation is similar but that is only a presumption. Given that the onus is on the father to establish that the Cook Islands are clearly and distinctly more appropriate, the lack of information does not assist his cause.

Enforcement

[85] Given the connections between the Cook Islands, the residents which are all New Zealand citizens, and New Zealand, I do not anticipate that there is any difficulty in enforcing the court order of either state.

Existing or proposed concurrent proceedings and effect of different outcomes

[86] At present, there are no concurrent proceedings but it is proposed that the father would file proceedings in the Cook Islands if I determine this application in his favour. I can make no judgment on the effect of different outcomes.

Submission to jurisdiction

[87] The father has clearly submitted to the jurisdiction in New Zealand, not only has he defended the application brought by the mother, but has brought applications of his own.

Decision

[88] The outcome of the application must be determined upon my overall assessment of the various factors that I have referred to, placed against the overriding consideration of the children’s welfare pursuant to s 4 of the Act.

[89] My assessment of these matters is according to the onus on the father to satisfy me that New Zealand is not the natural or appropriate forum and that the Cook Islands must be shown to be clearly and distinctly to be the most appropriate forum.

[90] I note that in reaching my decision I am not to take into account the conduct of any party in retaining the children but must focus upon the best interests of the children.

[91] In coming to my decision, I can only do so on the evidence that has been put before me. As I have stated, there has been a considerable lack of evidence on matters which may have affected the outcome. Weighing all the factors I have referred to, for the following reasons, I am of the clear view that the New Zealand Family Court is the appropriate forum:

• The proceeding is well underway in New Zealand and can shortly be set down for hearing. There is no evidence as to likely hearing time in the Cook Islands.

• Timeliness is the predominant factor affecting the children. Matters relating to Roy’s medical needs are for the substantive proceeding as there is no real issue he has not been properly looked after in either country.

• Both parties will be legally represented in New Zealand. It is possible neither will be represented in the Cook Islands.

• The children are here and have their own counsel. Whether a lawyer for the children would be appointed in the Cook Island is not known.

• The father has clearly submitted to the New Zealand jurisdiction.

• The other factors discussed appear neutral.

Timetabling

[92] Having made the determination that I have, it is important that this proceeding be brought to a conclusion as quickly as possible. The following directions are made:

(a) Any further affidavits by or on behalf of the mother are to be filed within 14 days.

(b) The father is to file any further affidavits within a further 14 days.

(c) A s 133 report is to be obtained. Ms Gartner is to determine the brief in consultation with other counsel and file within 7 days. It is acknowledged distance may preclude the report writer meeting with all as he or she would usually but may have to resort to telephone or other technological means.

(d) This matter is to be set down for a pre-hearing conference in 6 weeks time, the date to be advised by the Registrar.

(e) Counsel are requested to make enquiry of the Registry as to possible hearing dates for a 1-2 day hearing so that they are aware of witness availability at the pre-hearing conference.

(f) Any applications for evidence to be taken by AVL or other means are to be filed prior to the pre-hearing conference.

D G Smith

Family Court Judge

Solicitors: Helmore Bowron & Scott for the mother

Corcoran French for the father

Anya Gartner for the children