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Holloway v Mazar [2018] NZFC 6348 (23 August 2018)

Last Updated: 6 July 2020

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

RESERVED JUDGMENT OF JUDGE D A BURNS

[In relation to whether the child remains in the day to day care of mother or is placed in the day to day care of father with consent to shift the child back to live in [the EAC] and related orders]

Background

[1] The case concerns the life of [Asher Mazar], a male child born [date deleted] 2014. His mother is [Anna Holloway] (“mother”) and jointly with the father (“the parties”). His father is [Tohy Mazar] (“father”). The child has recently turned four years of age and at the date of hearing was residing in [location Z], New Zealand. The

[HOLLOWAY] v [MAZAR] [2018] NZFC 6348 [23 August 2018]

background is as follows. The parties met in 2009. In November 2011 the parties travelled to New Zealand to meet [Anna]’s family. They married on [date deleted] 2013 in [an East African country (“the EAC”)]. In [month deleted] 2014 [Anna]’s mother arrived in [the EAC] for the impending birth and stayed until [date deleted] 2014. The child was born on [date deleted] 2014. On [date deleted] 2015 the parties travelled together to New Zealand for a two-month holiday. In early 2016 both of them travelled to New Zealand for five months. In February 2016 to July 2016 the parties had relationship counselling. On [date deleted] 2016 the parties returned from New Zealand to live in [the EAC].

[2] On or about 4 April 2017 father made an application for an order preventing the child being removed from [the EAC]. That was granted on 5 April 2017.

[3] On 17 April 2017 the parties and child left [location A] for a holiday. On 21 April 2017 father became sick in [location B]. On 5 May 2017 mother attempted to leave [the EAC] with the child and was stopped at the airport. Mother and child moved to a hotel. On [date deleted] 2017 the parties separated. On 8 May 2017 father applied to the [deleted – court dealing with matters relating to children] in [location B] for orders. Mother was served with those proceedings on 9 May 2017. On 10 May 2017 the [EAC court] issued an order requiring mother to produce the child in Court on 13 May 2017 and continued with the restraining order stopping the child leaving [the EAC]. Further proceedings were filed in the [court] in [location B], applications and cross-applications. On 31 May 2017 the parties and their respective lawyers attended at the [court] in [location B] consented to an order allowing father supervised contact but also agreed at the same time to attend mediation commencing on 1 June 2017.

[4] On 1 June 2017 the parties attended with their lawyers for the first mediation session. There was some supervised contact with father. A second mediation session took place on 3 June 2017. A third mediation session took place on 8 June 2017. Further supervised contact took place.

[5] On 16 June 2017 the parties executed a document entitled ‘parental responsibility agreement’ and sought that the Court in [location B] adopt the agreement as an order by the Court.

[6] On 19 June 2017 the [court] in [location B] adopted the parental responsibility agreement as an order of the Court and it became a ‘[the EAC] parenting order’. Part of the agreement was that the parties sought the order to be registered in New Zealand and [the father’s home country] before the child left [the EAC]. The purpose was that if the child went to either [the father’s home country] or New Zealand the order was enforceable.

[7] On 3 July 2017 the parties executed a joint application to make a new parenting order by consent and a general memorandum in support.

[8] On 10 July 2017 the parties asked the Family Court in Auckland to make a new parenting order in the same terms as [the EAC] parenting order by mother’s lawyer in New Zealand filing the application. The child was not allowed to leave [the EAC] to come to New Zealand for the first period of time anticipated by the orders until the orders were registered in New Zealand and [the father’s home country]. Mother wanted to come to New Zealand with the child because her father was ill and she wanted to spend time with him.

[9] On 14 July 2017 the parenting order was made by the Family Court in New Zealand. By coincidence I was the Judge who presided over the chambers work and made the order. I set out the reasons in my reserved judgment of 19 July 2017.

[10] On 21 July 2017 the parties attended the [court] in [location B], [the EAC] and confirmed that [the EAC] parenting order had been registered in New Zealand and the parties agreed to set aside the order preventing removal of the child from [the EAC] subject to the terms of [the EAC] parenting order and the New Zealand parenting order.

[11] On [date deleted] 2017 mother and the child left [the EAC]. They spent a period of time in [another country] before coming to New Zealand. The child arrived in [location Z], New Zealand on [date deleted] 2017 and has remained in New Zealand ever since. Father says that mother is in breach of the terms of the parenting orders made in New Zealand.

[12] On 13 September 2017 mother applied without notice for an order varying the parenting order, leave to apply pursuant to s 139A (because the application was made prior to the expiration of the two-year limitation period) and an order preventing removal of the child from New Zealand. She also sought a protection order under the Domestic Violence Act. Mother notified her [EAC] lawyers about the proceedings filed in New Zealand at the same time. Father defended those proceedings and sought for the orders to be implemented. He applied for enforcement orders.

[13] Father in late November 2017 applied to [the EAC] Family Court for a warrant to uplift the child. On 7 December 2017 father filed an interlocutory application for a warrant to enforce the parenting order and an order declaring that New Zealand is forum non conveniens and, a stay pending determination of issues in the [court] in [the EAC] i.e. that the child’s welfare and best interests be determined by the [EAC court] and an order reducing time for filing of defence. Affidavit evidence was filed in support. Those proceedings are opposed. Urgency was sought with respect to the proceedings and the case was set down for a Centralised Fixture in March 2018 before me.

[14] Counsel filed full submissions for the March hearing. Counsel saw the issues that had to be determined differently. Mr Ashmore in his submissions of 2 March saw the issues that had to be determined were as follows:

• (a) whether leave should be granted pursuant to s 139A of the Act to allow an application for variation of the orders made by consent to be brought within the two-year period on the grounds of a material change of circumstances?
  
• (b) that the New Zealand Court should be the appropriate forum for determining the matters relating to the child on the basis that the child was living and residing in New Zealand;
  
• (c) a determination that any Hague Convention principles were not relevant;

• (d) a determination of the allegations of violence.
  

[15] Ms Hansen on behalf of the father sought a declaration that the New Zealand Court was not the forum for determining the issues but the child’s welfare and best interests should be determined in [location B]. A declaration that mother was in breach of the terms of the order made by consent. A declaration that the mother had unlawfully retained the child in New Zealand. Father seeks the issue of a warrant placing the child in the care of father and enabling return of the child back to live in [the EAC] i.e. enforcement of the order made by consent.

[16] Ms Casey filed submissions as Counsel to Assist the Court in relation to those issues.

[17] A preliminary argument took place at the hearing before me in March as to whether it was mandatory to determine the allegations of violence made by mother as a requirement of s 5(a) of the Act. After consideration and discussion between counsel essentially agreement was reached. I issued a minute recording that the case had to be set down for a s 5(a) safety enquiry before the balance of the issues could be determined. That safety enquiry took place on 29 June and 2 July and witnesses appeared from [the EAC] by way of AVL. Father travelled from [the EAC] to Auckland for the purposes of that hearing and was available for cross-examination personally. I issued the reserved judgment on 19 July 2018 and found the child was safe in the care of father. The hearing resumed before me on 6 August and I heard further submissions in addition to the written submissions that were filed. The judgment was reserved. Essentially I consider that the issues that the Court has to determine in this case are as follows:

• (a) whether the application brought to the Court by mother should have leave under s 139A of the Care of Children Act 2004 (“the Act”) or not?
  
• (b) secondly, in respect of the application for a warrant to enforce orders whether there is a warrant issued in favour of father or not?

• (c) thirdly, where the Court has jurisdiction along with the forum argument that is associated with it and a determination by the Court as to whether the Auckland Family Court should be the appropriate forum to consider the life of the child [Asher Mazar]?
  

Dealing with each of those issues in turn as follows.

Leave pursuant to s 139A COCA

[18] Parliament in the 2014 amendments to the Care of Children Act introduced s 139A of the Act. Section 139A provides for a party to have to apply for leave in certain cases to commence substantially similar proceedings. Section 139A says as follows:

139A Leave required in certain cases to commence substantially similar proceedings

(1) A proceeding (a new proceeding) may not be commenced under section 46R, 48, or 56 without the leave of the court if that new proceeding—

• (a) is substantially similar to a proceeding previously filed in the Family Court by any person (a previous proceeding); and
  
• (b) is to be commenced less than 2 years after the final direction or order was given in the previous proceeding.
  

(2) The leave of the court may only be given under subsection (1) if, since the final direction or order was given in the previous proceeding, there has been a material change in the circumstances of—

• (a) any party to the previous proceeding:
  
• (b) any child who was the subject of the previous proceeding.
  

(3) In this section, a new proceeding is substantially similar to a previous proceeding if—

• (a) the party commencing the new proceeding was a party to the previous proceeding; and
  
• (b) a child who is the subject of the new proceeding was the subject of the previous proceeding; and

• (c) the new proceeding—
  • (i) is commenced under the same provision of this Act as the previous proceeding; or
    
  • (ii) is for an order varying the order made in the previous proceeding; or
    
  • (iii) is for an order discharging the order made in the previous proceeding.
    
  
  

(4) This section does not apply if every party to the new proceeding consents to its commencement.

[19] In this case it is agreed between counsel that the application by mother for variation was substantially similar to the proceedings previously filed in the Family Court by her (a nine-week gap) and clearly was less than two years since the final direction or order was made by the Auckland Family Court. The argument centred around as to whether there was or was not a material change in the circumstances of either party to the previous proceedings or any child is the subject of the previous proceedings.

The law relating to s 139A

[20] This section was inserted by s 33 of the Care of Children Amendment Act (No. 2) 2013. It supplements s 141 which gives the Court the power to order that a person may not, in certain circumstances, commence proceedings under the Act without leave of the Court. Section 139A states that a new proceeding may not be commenced under s 46R (direction in a dispute between guardians), section 48 (application for a parenting order) or s 56 (application for variation of a parenting order) without the leave of the Court) if the new proceeding is:

• (i) substantially similar to a proceeding previously filed in the Family Court by any person;
  
• (ii) to be commenced less than two years after the final direction or order was given in the previous proceeding – s 139A(i).

[21] The intention of the new restriction was explained in Pidgeman v Oliver where His Honour Judge Russell said as follows:1

... to prevent continual and repeated litigation for issues affecting a child or children. The intention was that once a parenting order is made by the Court, which first satisfies itself the care arrangements are in the welfare and best interests of the child, there should be a two year period following in which the parties need to get on and make the care arrangements work. Continual litigation diverts parents’ attentions and resources from properly parenting their child. As a child grows older his or her needs will evolve and change, and parenting arrangements need to be reviewed. Parliament considered two years is an appropriate minimum time for such reviews to occur.

[22] In Border v Tokoroa Judge de Jong stated at paragraph [26]:2

...Presumably Parliament felt a need for this kind of filter to guard against parties repeatedly filing unnecessary or unmeritorious applications regarding children.

[23] In addition Judge Russell in Pidgeman v Oliver said:

Section 139A was an amendment brought into the Care of Children Act to prevent continual and repeated litigation for issues affecting a child or children. The intention was that once a parenting order is made by the Court, which first satisfies itself the care arrangements are in the welfare and best interests of the child, there should be a two year period following in which the parties need to get on and make the care arrangements work.

[24] I consider that Parliament also had a concern about the costs of repeated litigation.

[25] Leave can only be given if there has been a material change of circumstances. A number of Judges have looked at what those words mean. In Border v Tokoroa the mother of the child applied for day to day care of her son. Day to day had been given to the father three months earlier on the basis of evidence that mother that was involved with drugs and her life was out of control. The Court, was not satisfied that there had been a material change, refused mother’s leave to apply and dismissed her application. Judge de Jong said “the definition of material meaning ‘important’, ‘essential’ or ‘relevant’ was determined in the context of the section likely to be interpreted as important or relevant to any assessment of the welfare and best interests of the child

1 [2015] NZFC 6585 at [14].

2 [2014] NZFC 10947 and [2015] NZLR 832.

in his or her particular situation.” Judge Maude in Roundtree v Tipsanich observed at

[14] that: 3

...to qualify as a material change the change proposed must be one that if placed before the Judge who heard the proceedings earlier would have been one that would have likely led the Judge to reach a different conclusion.

[26] There have been a number of cases where leave has been refused and a number of cases where leave has been granted.

[27] In this case in terms of previous proceedings there is no doubt that the joint application for parenting orders filed by mother supported by consent memorandum amounted to a previous proceedings and that criteria is established. Also it is accepted that the previous proceedings is substantially similar to the new application for variation under s 56. Clearly mother applies for an order giving her day to day care and that constitutes an order and/or direction. Also there is a requirement that the applicant has an onus to satisfy the Court of the previous proceedings and she has complied with that requirement and it is also accepted that the restriction does not apply if the parties consent to a new application. In this case the respondent father does not consent to a new application. So the issue for determination by me is whether there has or has not been a material change of circumstances. There is a further issue where counsel are not in agreement. Ms Hansen submits that the material change of circumstances must be from the time of making the final order to the new application

i.e. from July 2017 to 13 September 2017 – a period of nine weeks.

[28] Mr Ashmore for the applicant argues that there is no justification interpreting the material change of circumstances as being restricted. It must have happened chronologically prior to the last hearing. He submits that the timing issue is resolved if it is said that the material change in circumstances is the failure to inform the Court that prior to consent orders being drafted the applicant had alleged that both she and the child had experienced serious domestic violence perpetrated by the respondent. If I adopt the observation of His Honour Judge Maude then I accept that as a Judge who granted the consent orders if I had been told that there was allegations of serious

3 [2015] NZFC 5488 and [2016] NZFLR 99.

domestic violence then I would not have granted the orders and required further enquiries to be made and safety issues to be determined.

[29] However the result of that conclusion is that it would encourage applicants who are seeking consent orders for particular purposes to omit material facts from the application and then take account of his or her own default by raising issues that should have been raised in the first place. That would lead to a very unsatisfactory outcome. I consider that the timing issue must be between the date of the final orders and any subsequent application coupled with any material change of circumstances that arise subsequent to the application that was not known at the date of the second or new application.

[30] Ms Casey submits that the Court now knows about the allegations made by mother to the Ministry of Foreign Affairs and Trade prior to her departure from [the EAC]. There was also disclosure to other third parties who took steps to assist her in leaving [the EAC]. She also relied on the disclosure she made to third parties when she was in New Zealand. For the reasons given in my reserved judgment of 19 July I have not accepted the allegations made by mother. She had said that her lawyers in [the EAC] were aware of the allegations which I have not accepted because I do not consider that the lawyers would have been party to the consent memorandum reached at mediation had they been aware. To reach such a conclusion would mean that mother committed perjury in the first application made on a joint basis by consent with father. It would mean that she materially sought to mislead the Court. I reached the conclusion that she considered herself in a desperate situation and was looking for remedies to get the child out of [the EAC] and was economical with the truth. I cannot accept that matters of fact which were known prior to the final orders being made which were not disclosed can be a material change of circumstances because that would be a clear breach of the duty that both parties have to the Court (together with their lawyers) to ensure that all relevant material is placed before the Court unless a reasonable explanation is provided as to why that was not made available. The explanation provided by mother in this case is that she was so desperate that she deliberately omitted those facts because she knew to refer to them in the New Zealand context would not result in orders being made and therefore the child would have remained in [the EAC]. She therefore seeks to justify not informing the Court of her

allegations. I have to have regard to the integrity of the Family Court system. I do have to place this particular child’s interests and welfare as the first and paramount consideration but it is also important that the child lives lawfully and I cannot allow a situation that enables mother to take advantage of her own default.

[31] In any event, the safety hearing took place to determine the allegations on the balance of probabilities and those proceedings have been found in favour of father. Therefore I cannot consider that the allegations of domestic violence amount to a material change of circumstances. Also I have to consider whether the breach of the consent orders (the child not being returned to [the EAC] as anticipated after three months) amounts to a material change of circumstances. I consider that the breach of an order cannot amount to a material change of circumstances. When I made the orders by consent I anticipated compliance by both parties. In the event of breach I considered that the Act provided for remedies as separate standalone provisions which do not require leave under s 139A. The way the Act is structured enforcement applications can be filed as of right as soon as a breach occurs and there are a range of remedies available to the Court. I consider that both parties had the benefit of legal advice and they are fully aware of the effects and implications of the mediated agreement and the orders that they were seeking.

[32] In Mr Ashmore’s submissions of 2 March he submitted that the Court could not sanction a situation where leave would not be granted to prevent it examining allegations of violence. I agreed with that submission and for the reasons set out in my minute set the safety enquiry down for determination. That has happened and a judgment issued. But as I have said above the non-disclosed allegations of violence (now determined in favour of father) cannot amount to a change of circumstances. I listened carefully to Mr Ashmore’s submissions to try and understand what was relied on by mother for a material change of circumstances and I have yet to hear any concrete fact that has occurred (other than the breach of the orders) since July 2017 when the final orders were made to justify a finding that there has been a material change of circumstances. Therefore I am not persuaded that there has been. Therefore, leave will not be granted to the application brought by mother for variation pursuant to s 56 of the Act. She will have to wait for the two-year period to pass which is a further year away, namely July 2019 before a fresh application can be brought. I

do observe that in the mediated agreement the parties agreed to review after fourteen months. There is nothing to prevent the parties undertaking that review.

[33] Parliament has set a high threshold for the reasons alluded to above and I am obliged as a judicial officer to apply the law as set out in the statute.

Forums conveniens – Care of Children s 126

[34] Mr Ashmore made submissions with respect to this issue in paragraphs 23 – 46 inclusive of his submissions of 2 March which I set out in full:

23. Father has made a cross-application to both stay the current proceedings and a declaration regarding forum conveniens.
    
24. The application properly cites s 126 of the Care of Children Act as the statutory provision on which he is relying. S 126 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.

25. Counsel accepts that in the present circumstances this is the correct section on which to rely on.
    

Jurisdiction

26. The Court undoubtedly has jurisdiction in this case to proceed with mother’s application. Presumably the argument being raised by father is that notwithstanding this the Court also has the discretion to decline to make an order pursuant to s 126(2)(b). In considering an application pursuant to this section the overarching statutory and jurisprudential background must be examined closely.
    
27. Firstly reference is in the application of forum conveniens principles. The application differs from the usual forum conveniens situation. Counsel reiterates the decision that falls to be made is one pursuant to the Care of Children Act and as such governed by the paramountcy provision in s 4 as guided by the provisions of s 5.
    
28. Accordingly in determining whether to exercise the discretion contained in s 126(2)(b) the Court is determining whether it is in [Asher]’s best interests to have mother’s application considered or whether the Court should defer to the [the EAC’s] jurisdiction.
    
29. The Court must also be mindful of precisely what they are being asked to do. The Court is not being asked to determine whether it is in [Asher]’s best interests to remain in New Zealand or be returned to [the EAC].
    
30. Accordingly we reiterate the question is “is it in [Asher]’s interest to have the question of his case considered by this Court or is in his interests to defer the making of that decision to a foreign Court”. Counsel reiterates that unlike applications heard pursuant to sub part 4 of the Care of Children Act ss 4, 5 and 6 are neither excluded nor limited in terms of s 126.
    

Is the Court able to use s 126(2)?

31. The Court must firstly determine whether or not they consider [Asher] is currently resident in New Zealand. [Asher] is aged 3 and the evidence shows he has been residing in New Zealand since August. He is attending day care and on the evidence doing well. He has also previously resided in New Zealand.
    

The nature of s 126(2) enquiry

32. Counsel cannot overstate the importance of focusing on the parameters of s 126 and not seeing this as some form of broader forum conveniens argument.

33. The Family Court has no general jurisdiction and must limit its decision making to the ambit of the statute is considering – in this case the Care of Children Act.
    
34. As the High Court in the Lehartel decision:
    

So the issue is not one of jurisdiction. The issue becomes whether, in all the circumstances as they exist here, and having regard to B’s welfare as the first and paramount consideration, the Court correctly exercises jurisdiction by “in effect” requiring B to be taken back to Tahiti so that the Court in Tahiti could determine all custody, access and related questions.

35. This specific approach was also proved by Panckhurst J in the decision of N v O.
    
36. Probably the most recent and succinct summary of the application under this section remains the decision of Judge Smith in AND v MMN.
    
37. In AND v MMN Judge Smith having analysed the various relevant cases on exercising of a section and ultimately endorses the summary provided by Judge Callinicos in CG v SG.
    
38. These principles are as follows:
    
    • (1) The overriding consideration remains the best interests of the child. The decision of which forum is best capable of achieving a decision must be framed on the best interests of the child.
      
    • (2) The onus rests on the party seeking foreign adjudication.
      
    • (3) 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 is to establish the foreign forum is quite clearly and distinctly more appropriate.
      
    • (4) The Court must not be reactive to the current parent removing or retaining the child but must remain focused on the best interests of the child.
      
39. The issue is not one of primary 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.”
    
40. Although the Hague Convention does not apply it is appropriate for the Court to have regard to its policy.
    
41. The Court must also bear in mind the provisions of the United Nations Convention of the Rights of the Child. As to specific application the Court must take into account:

• (1) Trial mechanics and evidentiary considerations.
  
  • (2) Timeframe for determination.
    
  • (3) Personal circumstances.
    
  • (4) Where is the child living.
    
  • (5) Connection with each country.
    
  • (6) Quality of comparison of the competing jurisdictions.
    
  • (7) Genuine proceedings or jurisdictional advantage.
    
  • (8) Enforcement.
    
  • (9) Existing or proposed concurrent proceedings and the effect of different outcomes.
    
  • (10) Submission to jurisdiction.
    

Relevance of the Hague Convention

42. Considerable caution must be shown in terms of the application of the Hague Convention in child abduction in cases such as this. The references contained in some of the earlier authorities suggesting that the “principles” of the Hague Convention must be applied even in non-Hague cases and there is some similarity in this approach to that taken.
    
43. Judge Smith in the A v D decision quite rightly says of Hague principles that while regard should be given to them in “general terms” limited weighting may well be properly given to this consideration given the wider welfare of these children as this Court’s paramount consideration.
    
44. The Family Court is a Court of record and is bound to act in accordance with the empowering statute. The Care of Children Act clearly provides that the paramount consideration in any decision affecting a child under the Care of Children Act will be that which is in the child’s best interests. Sub part (4) excludes this section but the current application is simply not made under sub part (4). This Court is not entitled to simply pretend that it is and disregard the paramountcy principle.
    
45. Furthermore at the risk of stating the obvious the Hague Convention is not a convention whereby parties who contract to it agree to return children to their country of origin if abduction is established – regardless of that country of origin.
    
46. The Hague Convention is a convention whereby parties agree to return children (subject to their defences) to certain countries that the New Zealand Parliament selects. If a country has neither ratified the Convention nor itself been cross-ratified by New Zealand the Convention does not apply. Accordingly

applying Hague principles to return a child to [the EAC] is not acting in accordance with the Convention.

[35] Ms Hansen made submissions in reply dated 1 March in paragraphs 31 – 46 inclusive as follows:

31. Pursuant to s 126(1)(a) and (b) of the Act, the Family Court has jurisdiction to make final orders since [Asher] is the subject of the application dated 13 September 2017 and he was present in New Zealand when the application was made.
    
32. Under s 126(2)(b) however, the Court may decline to make an order under the Act if it 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”.
    
33. Counsel submits that the issues of jurisdiction and forum are not mutually exclusive. The Court can prima facie have jurisdiction but then refuse to make an order because of the matters outlined in s 126(2)(b) of the Act. One of the reasons the Court refuses to make an order could be that New Zealand is not the appropriate forum to determine matters.
    
34. Counsel submits that jurisdiction is not the primary issue in assessing what forum is the correct forum for addressing applications in the context of child issue cases.
    
35. In Lehartel v Lehartel [1993] 1 NZLR 578 (HC), Tompkins J found that the issue was not primarily one of jurisdiction, but on establishing what forum was most appropriate having regard to the child’s welfare as the first and paramount consideration.
    
36. This view was endorsed by Panckhurst J in N v O [2004] NZFLR 926, who articulated at [50] that due to the paramountcy principle, the issue was not primarily one of jurisdiction, but of assessing a range of factors having regard to the paramountcy principle.
    
37. This view was endorsed by Judge Callinicos in CG v SG 24 FRNZ 502, when he remarked at [32] that, Panckhurst J was “in no doubt” that Lehartel remains the correct approach and at [34] where he reiterated that the issue was not primarily one of jurisdiction but of having regard to the paramountcy principle when assessing which forum was the most appropriate forum.
    
38. Counsel submits that AND v MMN FC Christchurch FAM-2011- 009-341, 8 July 2011 is relevant to the issues that require determination in this matter. In AND v MMN, Judge E Smith set out the key principles from case law applying to forum conveniens applications in the context of child issue cases.
    
39. Her Honour noted at [115] (supporting Panckhurst J in N v O) that “...the required approach was to inquire as to the first step whether

the New Zealand court should finally determine custody, access and related matters or whether it was in the best interests of the child for such issues to be determined in the jurisdiction from which he has been removed”.

40. Counsel submits that issue is not one of jurisdiction alone, but of establishing which forum is the most appropriate forum to determine parenting matters for [Asher].
    

Forum case law

41. In relation to forum conveniens applications in the context of child issue cases, Judge E Smith in AND v MMN first confirmed that the leading case on forum conveniens is Gilmour v Gilmour [1993] NZFLR 561. In this case, the Court applied the test from Spiliada Maritime Corporation v Cansulex Limited [1987] CA 460.
    
42. This test involves establishing whether the foreign forum was or is “clearly more appropriate” than New Zealand, with the burden of showing greater suitability being on the party seeking the declaration.
    
43. After reviewing and approving the decisions reached in previous cases Lehartel v Lehartel and N v O involving forum issues child custody issues, Judge E Smith in AND v MMN concluded [54]:
    

...the required and binding approach on the Family Court where there is a dispute as to the proper forum for the determination of 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 the best interests of the child for such issues to be decided in the jurisdiction from which he or she has been removed.

44. Her Honour, at [59] then went on to expressly agree with the approach taken by Judge Callinicos in CG v SG at [31] to [35] who in turn assimilated the principles of forum non conveniens declarations in Lehartel v Lehartel and N v O. In CG v SG at [34] to [35]:
    
    • [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 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 (2005) 24 FRNZ 502, 509,
    
  • 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 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 juridical advantage?
      
    • enforcement,
      
    • existing or proposed concurrent proceedings and effect of different outcomes,
      
    • submission to jurisdiction.

45. Judge E Smith in AND v MMN also opined at [59] in relation to the conclusions reached in Lehartel v Lehartel and N v O and as assimilated into principles by Judge Callinicos in CG v SG, that the above principled approach was to be taken in child issue cases and that, “...in doing so the overall riding consideration must be the paramountcy of the welfare principle”.
    
46. The decisions reached in Lehartel v Lehartel and N v O as assimilated into the set of principles in the context of child issue cases by Judge Callinicos in CG v SG and as adopted by the Court in AND v MMN are of particular relevance for reaching a determination in the present case as to what forum is more appropriate. However, as above, these cases highlight that any forum decision must be framed with inference to the paramountcy principle.
    

[36] I have received helpful submissions from Ms Casey as Counsel to Assist.

Judgment on this issue

[37] This is a determination that I do not have to decide because I have not granted leave under s 139A. There are no other proceedings before the Court other than enforcement applications which I do not consider that a determination of forum has to be made. However, in the event of the Court being wrong on the finding that leave should not be granted or subsequently held to be wrong I consider I should make a determination as to whether the Court should assume jurisdiction with respect to this child. Also the issue will arise in twelve months in any event should an application after the two-year limitation period has elapsed will be made or the parties consent to leave. I find that the Court should assume jurisdiction with respect to this child for the following reasons:

• (a) the Court is required to determine the best interests and welfare of the child as the first and paramount consideration;
  
• (b) the child is resident in New Zealand and in the day to day care of the mother;
  
• (c) orders have been made by this Court impacting on the child;

• (d) whilst I have been critical of mother’s behaviour, the case is not about punishing or disciplining mother but what is in the best interests and welfare of the child;
  
  • (e) the major issue for determination between the parties is where this child is going to grow up i.e. [the EAC], New Zealand or possibly [father’s home country]. It is a locality issue. The issue of where a child grows up is a vital one. The consent orders were on the basis of my understanding that apart from the first three months when the child came to New Zealand for the purposes of seeing grandparents and mother being able to connect with her father when he was gravely ill the parties had determined that the child would be brought up in [the EAC] on a three-month on and off basis. Mother now seeks to have the child brought up in New Zealand. Father opposes that. From my perspective the question is where the relocation case should occur, New Zealand or [the EAC];
    
  • (f) the Family Court in New Zealand deals with relocation cases all the time and there is no impediment to the Court dealing with that issue. In the caselaw referred to in submissions I have to find that the New Zealand Court is not a natural or appropriate forum and establish that [the EAC] is clearly and distinctly more appropriate. On a location case I cannot find to that threshold and regard New Zealand Family Court is an appropriate forum to determine the future long-term locality of this child and where he is going to be brought up;
    
  • (g) it is clear that the joint arrangement reached between the parties has broken down and is no longer viable. There is complete lack of trust between the parties. It follows therefore that by what has happened eliminated the possibly of the cooperative arrangement which means that it is likely that the child will either be principally in the care of mother in New Zealand or principally in the care of father in [the EAC] and the child will not have a relationship or a limited relationship with at least one parent. Whilst I can be cognisant of the behaviour of one

parent it is the child’s best interests and welfare that is paramount and it is not appropriate to punish a parent through the child. I accept that father is going to be inconvenienced in coming to New Zealand but the hearing that took place with the safety enquiry demonstrates that with accommodation witnesses can appear from [the EAC] by AVL. The father is able to travel and a hearing in Auckland, New Zealand on location is entirely viable;

(h) [The EAC] is not a signatory to the Hague Convention and so therefore neither party can rely on the provisions of the Convention. Also I am satisfied that the child is stable, is being educated and appears to be progressing well. He appears to have a relationship with father and the reports received by the Court is that the contact that he had when he came to New Zealand for the purposes of the hearing went well. Arrangements can be made for him to continue for him to have contact in New Zealand which would require him to travel. Whilst inconvenient to him it is viable and workable;

(i) the child does have a connection with [the EAC] but has been now living in New Zealand for a year which is a quarter of his life and clearly has a connection with New Zealand. I am not in a position to make any judgment about the qualitative comparison of competing jurisdictions. From what the parties say it appears as though the [EAC court] is more than capable of dealing with issues relating to this child and there are currently proceedings before it. I am certain that the legislation governing children in [the EAC] is equally child-focussed and regard the [court] in [the EAC] as providing an appropriate forum for determining the future of this child. Essentially I consider that the two Courts are of equal competence to determine the relocation case which inevitably will occur. As the child is currently resident in New Zealand and the Court has access to any specialist reports that may be necessary for the proper determination of the case it is more convenient, fairly and appropriately held in New Zealand once the Court is able to

consider an application and s 139A is satisfied. I find a useful purpose has been proven in this case and the criteria in s 126 established.

Application for a warrant

[38] This application is made pursuant to s 68. I set out s 68 in full:

68 Court may make certain orders or respond in other ways to contravention of parenting orders

(1) On an application for the purpose by a party to a parenting order, the court may, if satisfied that another party to the order has contravened the order, do any of the following:

• (a) admonish the party who has contravened the order:
  
• (b) vary or discharge the parenting order under section 56 (for example, by reducing the time during which the child is in the care of, or has contact with, the party who has contravened the order).
  

(2) The court may (as well as, or instead of, exercising its powers under subsection (1)) consider making an order or issuing a warrant under any of sections 70 to 77 if—

• (a) the contravention that is the subject of the application under this section is of a serious nature; or
  
• (b) the party who has contravened the parenting order has previously contravened that order or another order under this Act.
  

(3) Nothing in this section limits other powers of the court to deal with a contravention of a parenting order.

(4) On receiving an application under this section, the Registrar—

• (a) must appoint a date and time for the hearing of the application and, by notice in writing to the parties to the application, inform them of that date and time:
  
• (b) may, if the court directs, request them to attend.
  

[39] Section 68 provides authority for the Court to deal with breaches of parenting orders. In this case the father applied for the issue of a warrant. He sought to have a warrant issued to enforce the parenting orders made by consent in July 2017. He relied on s 72 of the Care of Children Act. I set out s 72 as follows:

72 Warrant to enforce role of providing day-to-day care for child

(1) In this section, eligible person, in relation to a child, means a person who, at the time of the application, has the role of providing day-to- day care for the child—

• (a) through being a guardian (other than a testamentary guardian) whose role of providing day-to-day care for the child has not been removed by a court order; or
  
• (b) under a parenting order, some other order of a New Zealand court, or an overseas parenting order registered under section 81.
  

(2) On an application for the purpose by an eligible person, the Family Court or the District Court may issue a warrant authorising a constable or a social worker or any other person named in the warrant to take the child (using reasonable force if necessary) and to deliver the child—

• (a) to the eligible person; or
  
• (b) to some other person or authority (including a person in or from a prescribed overseas country) named in the warrant on behalf of the eligible person.
  

(3) However, if 2 or more persons have the role of providing day-to-day care for a child, no warrant under this section may authorise—

• (a) the removal of the child from the care of one of those persons; and
  
• (b) the delivery of the child to the care of another of them.
  

[40] Section 72(3) places a prohibition on the issue of a warrant where two or more persons have the role of providing day to day care for the child and no warrant is to issue under this section that authorises the removal of the child from the care of one of those persons and delivery of the child to the other. I have to consider what the purpose of s 72(3) is. A shared-care requires cooperation and consultation. It requires a mutual commitment to make it work. A warrant is a contraindication to cooperation and consultation. I consider the Court is required to make a determination. First, that a shared-care regime is not working. A warrant to enforce an arrangement predicated on cooperation and consultation is a contradiction. This is why I think the legislation requires the Court before issuing a warrant to determine that the shared-care is not working and not to issue in those circumstances.

[41] The effect of this section has not been finally determined. It is common practice in the Family Court where there is a shared-care order and one party contends

that that order has been breached for an application to be made for interim day to day care and a warrant to enforce the new order. In this case no such application has been made. If it had been it would amount to an acceptance of jurisdiction or consent under s 139A. The Court does have power under s 68(1)(b) and could vary the order. I set out the reasons why I am not prepared to do that later in this judgment. Ms Hansen seeks to enforce the terms of the order made in July based on the parental responsibility agreement. The relevant parts of the order made by consent are as follows:

1. Guided by, the best interests of the child, the parties agree that they shall have joint legal custody of the child.
   
2. Actual care and control shall be shared equally and alternated between the parties as hereunder:
   
   • 2.1 Both parties shall have a 50/50 custody of the child on the terms set out in this agreement;
     
   • 2.2 The mother shall have custody of the child for the first 3 months within which, she will travel with the child to New Zealand;
     
   • 2.3 Upon the mother’s return from New Zealand, the father will have custody of the child for the next 3 months;
     
   • 2.4 Subsequently, custody of the minor will be alternated between the parties after every 3 months or as shall be agreed between the parties;
     
   • 2.5 The mother shall live with the child in [location B] while the father shall live with the child in [location A]. Each party shall be free to travel with the child during the periods that the party will have custody, with the written consent of the other party which consent shall not be unreasonably withheld or denied, and taking into account the child’s school sessions.
     

[42] Ms Hansen submitted that I can work backwards to the date of departure of the child to work out pursuant to the agreed order that the child should be in [the EAC]. She argued that the mirror orders made in the three jurisdictions with the first permission to visit New Zealand for a period of three months began on 19 June 2017. At the end of three months from 19 June the applicant will return to [the EAC] and the child will be in the father’s day to day care. The day to day care will alternate each three months between the parties as agreed or as agreed otherwise (the father contends that no agreement has been reached). During the period when the child is in the day to day care of one parent the other parent will have daily contact with the child on

Skype or phone and physical visitation on alternate weekends unless the latter is not possible due to the child being out of [the EAC] by consent. Father contends that no consent was provided. The order says that the child will attend school in [location B] and [location A] and appears on an alternating basis. It also looks clear from the agreement itself that the parties agreed to review the terms of the agreement in fourteen months which appears to be from the date of the agreement so that the period of review is now up and due. I enquired in Court of Ms Hansen as to precisely what a warrant was to issue for. A warrant would authorise a police officer or a social worker to place the child into the care of father. I cannot as part of the terms and conditions of a warrant in addition allow for the discharge of the order preventing removal where there is opposition or allow relocation without a hearing. There is an extant application for an OPR which has not been heard. I have not received argument about that or contemporaneously allow for the child’s removal from New Zealand to travel to [the EAC]. In order to allow that I would have to give consideration to placing the child in father’s day to day care and vary or discharge the orders made by consent in July. I cannot do that because father has not consented to the Court having jurisdiction under s 139A and has opposed the leave application. The situation has therefore become a ‘catch 22’ because to issue enforcement orders I cannot issue a warrant without infringing s 72(3) on the terms of the order as it stands and could only do so if the Court entertained an application for day to day care. Because of the stance taken by father in his proceedings and the reasons I have already given in this judgment. There has been no material change of circumstances to warrant granting leave under s 139A and the Court cannot issue an enforcement order. I fully accept that there has been debate within the Family Court Judges about the effect of subs. (3). The section itself is plain that no warrant may authorise the removal of child from one of two persons both of whom have the role of providing day to day care. There has been one decision of GAK v KBK4.

[43] Under s 48(2) the Court has power to make a parenting order determining that a person has a role of providing day to day care for a child either at all times or at specified times and either alone or jointly with one or more persons. If a parenting order is made in favour of two persons jointly and no time is specified in the order it

4 [2005] NZFC 28; [2006] NZFLR 128.

would appear on the face of it that neither person could obtain a warrant to enforce the order because each would have the right to have the child in their day to day care.

[44] Section 73(3) is clear that no warrant may authorise the removal of the child if one or two persons both of whom have the role of providing day to day care. In the decision of GAK v KBK Judge Murfitt ruled that s 72(3) should be looked at in a temporal context and the word ‘have’ should be interpreted as ‘have at the same time’ the role of providing day to day care of the child. This decision was approved by Judge Neal in BRJ v LMA5. However the matter cannot be said to be finally decided. The reality in most shared-care situations are that parents will alternate the care. Parliament in passing s 72(3) would have been aware of that reality. I do not think the Court can issue a warrant to enforce a shared-care order. I have considerable doubt that I can issue a warrant in the circumstances of this particular case in view of subs. (3) and I accept that this has created an impasse.

Why should the Court not vary the joint parenting order and issue a warrant and authorise a child to leave the jurisdiction of New Zealand?

[45] I decline to exercise the power under s 68(1)(b) which enables the Court to vary the order under s 56 (without leave) as applied for by father for the following reasons:

• (a) father is not in New Zealand to exercise interim day to day care;
  
• (b) the only purpose to place the child in his care is to enable removal to [the EAC]. Removal is a separate issue from whether a warrant to issue;
  
• (c) I could only allow relocation pursuant to s 46R if there is a best interest and welfare enquiry;
  
• (d) there is in place an extant application under an order preventing removal which has not been heard. That application does not require
  

5 23 September 2005, Tauranga Family Court.

leave and must be determined in terms of the best interests and welfare of the child as required by s 4 of the Act;

(e) there is a dispute between mother and father of a guardianship nature which has not been determined, namely locality;

(f) proceedings have been lodged as I understand in [the EAC] and there is no reason why those proceedings cannot continue. I have some doubt about the reciprocal nature of enforcement between New Zealand and [the EAC]. Mother has alleged that the child may face risk issues if returned to [the EAC] which will require full investigation and evidence to be analysed. I consider it would be inappropriate to determine this in the context of the submissions only hearing.

[46] Because [the EAC] is not a signatory to Hague Convention the Hague Convention does not apply to this case. The Hague Convention provides for an order for return and conditions to be attached to such an order to provide protection for the child. Often undertakings are given by the two central authorities in order to achieve a safe and viable return. The Court does not have such a mechanism available to it in the warrant procedure and I am concerned to effectively make an order as sought which would mean return without the protective mechanisms being fully enquired into and determined.

[47] I consider the only way to break the impasse presented to the Court is for father to consent to the Family Court at Auckland having jurisdiction and waive any opposition for leave under s 139A. Then I think the Court can get on with the job of dealing with the central issue between the parties of which country this child is to grow up in and proceed as soon as possible to determine the relocation case. The agreement reached and the orders made by consent will be part of the background to that hearing but at the end of the day the determination as to which country the child is to grow up in will be made in the best interests and welfare of the child. Accordingly for those reasons I decline to grant the application for a warrant and the application is dismissed.

Procedural directions

[48] I direct that the case be set down for a 30-minute judicial conference so that counsel can confer and advise the Court in the light of this judgment as to where the case proceeds to from here, if anywhere. It may be that appeals will be lodged against the Court’s two judgments in which case it will be for the High Court to determine whether I have made any errors in the interpretation of the application of the law to the facts of this particular case. I ask the father to reflect on the situation because in my view it is better that the parties’ energy and time be spent on trying to work out where this child is to be brought up rather than focusing on procedural issues. I remind the parties that the issue of location will have to be determined in either [the EAC] or New Zealand and as this Court is seized of the matter at present and is in a position to conduct that enquiry I think the best thing is for the parties to get on with it so that it can be determined on a once and for all basis.

Dated at Auckland this 23rd day of August 2018 at am/pm.

D A Burns

Family Court Judge