Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions

R v Chief Executive of the Department for Courts HC Christchurch AP 14/01 [2001] NZHC 598 (4 July 2001)

Last Updated: 13 November 2013

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY AP 14/01

BETWEEN [RM]
Appellant

AND THE CHIEF EXECUTIVE OF THE DEPARTMENT FOR COURTS as the New Zealand Central Authority ex parte [BM]
Respondent

Date of Hearing: 29 June 2001

Coram: Panckhurst J
Fraser J

Judgment Released: 4 July 2001

Counsel: S J Hembrow for Appellant
I M Mitchell for Respondent

JUDGMENT OF THE COURT

Solicitors:
Young Hunter, Christchurch for Appellant
Cuningham Taylor, Christchurch for Respondent

[1] This is an appeal from a judgment of the Family Court, making an order, pursuant to s 12 of the Guardianship Amendment Act 1991, that [L] (aged 14), [N] (aged 12) and [E] and [H] (both aged 10) be returned to the United States. The statute referred to, implements in New Zealand the Hague Convention on the Civil Aspects of International Child Abduction.

The Background:

[2] The Appellant, the mother of the children, was born in New Zealand and still has family in Christchurch. Some years ago she went to the United States where, [in] 1980, she married [BM]. The children are the children of the marriage. The mother and father separated on 9 August 1996. She had the actual care of the children, with the father having visitation rights.

[3] On 10 March 1999 the father was convicted of sexual offences against [L], [N] and [H]. He was sentenced to 13 years imprisonment. The father has at all times denied such offending and some support for his denial has emerged. The Family Court Judge, after referring to the evidence in that connection, said:

“It is not my role to assess this evidence but I simply comment that there is now a body of opinion which might throw doubt upon the validity of the father’s convictions and throw doubt upon the occurrence of sexual abuse. The position however is that this Court must accept that the father has been convicted of sexual abuse against the three named children and that conviction stands.”

[4] After the father was imprisoned, his mother and his brother, [M], became involved with the Appellant and the four children. After various difficulties they had what are known in the USA as “stay away orders” imposed on them. Certain charges were also brought but not proceeded with.

[5] On 14 May 1999 the Circuit Court of Loudoun County in Virginia directed that an application which the mother had made to the Court for consent to take the children to New Zealand be set down for hearing on 29 July 1999. It also made an order that in the meantime the mother and children were enjoined from leaving and were to surrender their passports to the Court.

[6] On 29 July 1999 the hearing which had been directed duly took place. In the course of it, while giving evidence, the appellant was asked:

“And will you confirm swear and promise that you will come back before this Court with the children if necessary whenever the Court orders for future appearances for a custody trial?”

She answered “I will” and was then asked:

“And for an equitable distribution trial as far as that of the pending divorce action?”

To which she responded “I do”.

[7] In the course of an oral judgment, given on the same day, the presiding Judge said:

“When I boil it all down what it comes down to in my mind is that even though this is a pendente lite matter it’s going to be final because despite the fact that Mrs [RM] testifies under oath swearing that she - - swearing and promising that she will return and bring the children back for any further proceedings in this case I can’t be assured of that. I can’t be assured of that. Things may change.”

The Judge was also concerned whether there were any relevant treaties or conventions between the United States and New Zealand: it appears that he was not informed that New Zealand had implemented the Hague Convention in 1991. In the result, he granted the injunction, which had been sought by the father, enjoining the mother from removing the children from Loudoun County, Virginia during the pendency of the cause and until the further order of the Court.

[8] Notwithstanding these orders the mother, having obtained fresh passports from the New Zealand Embassy, left the United States and arrived in New Zealand [in] August 1999 where she and the children have remained since.

[9] In the meantime an application by the paternal grandmother for visitation rights had been made and was set down for hearing on 14 September 1999. By that time, as already noted, the appellant and the children were in New Zealand. However the matter was dealt with in the appellant’s absence and an order in favour of the grandmother was made.

[10] While in prison, the father formulated a plan for [L] and [N] to be abducted from New Zealand and taken to the United States. The Family Court Judge in the present case found that this was a serious attempt which was set in motion although one where “the chances of success were probably slim”. He also found, contrary to the mother’s allegations, that the paternal grandmother and [M] had not been involved in a conspiracy with the father over the attempted abduction.

[11] On 8 February 2000 the father escaped from prison but was shortly thereafter recaptured and sentenced to an additional term of 5 years’ imprisonment. Part of that term was directed to be suspended and the whole of it was to be consecutive (which we take to be synonymous with the New Zealand term of concurrent) with sentences already being served. He was also charged in respect of the kidnapping attempt but the charge was not proceeded with, apparently as part of a plea bargaining arrangement.

[12] In 1999 the father’s appeals were still pending but by the time the present application came to be heard in the Family Court the position noted by the Judge was that “the father seems to have exhausted his direct criminal appeal rights but is not without further avenues of ‘appeal”‘. It is not entirely clear what is meant by ‘appeal’ but it is presumably a reference to statements in affidavits filed by the father that he is still pursuing the overturning of the convictions in State and Federal Courts.

[13] The proceedings which give rise to the instant appeal were commenced on 15 August 2000 when the New Zealand Central Authority under the Guardianship Amendment Act 1991, acting on behalf of the father, applied to the Family Court for an order that the children be returned to the United States. The mother opposed the application. The case was heard by Judge Bisphan in the Family Court on 19 and 20 March 2000.

[14] At the hearing counsel for the mother conceded that the pre-conditions in s 12(1) had been met, but it was contended on her behalf, in respect of each of the children, in terms of s13(1)(c)(i) and (ii) of the Guardianship Amendment Act 1991:

“(c) That there is a grave risk that the child’s return -

(i) Would expose the child to physical or psychological harm; or

(ii) Would otherwise place the child in an intolerable situation.”

It was also argued that the Court, in the exercise of the discretion arising in the event of any of these matters being established to the satisfaction of the Court, should refuse to make an order for the return of the children.

[15] On 12 April 2001 Judge Bisphan delivered a written judgment. In it he reviewed the evidence, set out the law applicable, and found that in one respect the mother’s case had been made out. He accepted that on return to the United States, the children’s fears, arising out of their experiences in the United States and their knowledge of the abduction plan to take them from New Zealand, would almost inevitably be rekindled and magnified. He categorised this as “psychological harm” rather than a case of the children being placed in an “intolerable situation” and noted that it was limited in nature and extent, ie that the basis of the finding of psychological harm was not that the fears referred to would be caused, but that the already existing fears would be exacerbated.

[16] The Judge then dealt with the discretion vested in him and set out his conclusion as follows:

“All relevant circumstances must be considered in the exercise of the discretion but the following assumed importance:

a. The ground of grave risk of psychological harm, has been made out and weighs in favour of retaining the children in New Zealand, but I must take account of the limited nature and extent of the likely psychological harm as I have found. This reduces the weighting of this factor.

b. I note the objections expressed by the children against a return. They are moderate and do not have much influence on me.

c. The underlying purpose of the legislation which requires the return of abducted children to their home jurisdiction weighs heavily in favour of a return.

d. The American Courts, both Criminal and Family, have been seized of the parents’ litigation intermittently since the parents separated and such involvement has continued past the mother’s departure from the USA. If there is to be further litigation involving the children (and I accept that is not essential to my considerations) then clearly the appropriate forum is the USA. The mother was in breach of a Court order when she brought the children to New Zealand. These factors again weigh in favour of a return.

e. The mother has indicated that she will return to the USA if the children are ordered to return. She may face contempt proceedings despite undertakings given by the father and other family members.

In the exercise of my discretion I find that the factors in favour of a return outweigh those favouring retention. I now order a return of all four children to the USA. . . .”

The Relevant Principles:

[17] The law applicable is well established and there is no dispute as to the principles which are to be applied. First, as to the approach to be taken, we adopt the principles set out by Potter J in Swayne v Lush [1999] NZFLR 49. That which is particularly relevant to this case is set out in paragraph [19] below. Secondly, as to the purpose and application of the Hague Convention and the Guardianship Amendment Act 1991 we respectfully adopt the following passage from the judgment of Elias J in Clarke v Carson [1995] NZFLR 926, at 927 and 928:

“The Convention is itself scheduled to the Act. Its purpose is apparent from the preamble and art 1.

The preamble records the desire of the signatory states ‘to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access. Article 1 provides that:

‘The objects of the present Convention are -

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

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

It is clear that the function of a New Zealand Court hearing an application under the 1991 Act is circumscribed. It is not its function to determine the underlying merits of whether the child is better off in one country or another. That is emphasised by s 35 which displaces the injunction contained in s 23(3) of the principal Act that in proceedings under it the welfare of the child is the first and paramount consideration. Rather, the Act is designed to achieve international cooperation in preventing the wrongful removal of children and proceeds on the basis that, except in the special circumstances provided for by s 13, the appropriate place to determine questions of custody, access and residence is the country from which the child was wrongfully removed. Where the Act applies, the Court is directed by s 12 to order that the child be returned ‘forthwith’ unless s 13 applies.

Section 13 sets out the only circumstances which constitute grounds for the refusal of the order for return. Where those grounds are made out to the satisfaction of the Court by the person resisting the order for return (here, the mother), the consequence is not that the order will be refused but that the Court is no longer obliged to return the child but has a discretion whether or not to do so. That discretion must be exercised in the context of the Act under which it is conferred and the Convention which it implements and schedules. (See In re A (Minors) (Abduction: Custody Rights) [1992] 2 WLR 536 at 550 per Balcombe LJ). It therefore requires assessment of whether decisions affecting the child should be made in the Court of the country from which the child has been wrongfully removed or the country of the Court in which it is wrongfully retained. That requires consideration of the purpose and policy of the Act in speedy return and consideration of the welfare of the child in having the determination made in one country or the other. (See In re A (Minors) (Abduction: Custody Rights) (No 2) [1992] 3 WLR 538, at 547 per Sir Stephen Brown P, at 548 per Scott LJ.”

[18] As already noted, the Family Court Judge found that there was a grave risk of psychological harm if the children were returned. The only remaining issue before him therefore, was whether he should exercise his discretion against making an order for return.

[19] On appeal, the finding of grave risk of psychological harm was not challenged by the respondent, so the issue is whether the appellant has shown that the Family Court Judge wrongly exercised his discretion in declining to refuse an order for removal. The long established principle, recently noted and discussed in Swayne v Lush (supra), is that this Court will intervene only if the Family Court Judge acted on a wrong principle, failed to take into account some relevant matter, took into account some irrelevant matter or was plainly wrong. The appellant’s case is that there were several respects in which the Judge wrongly failed to find that the appellant’s case had been established and that these were accordingly omitted from consideration, thereby vitiating the exercise of his discretion and requiring that his decision be reviewed.

Physical or Psychological Harm?:

[20] The first point taken is that the Judge ought to have found that there was a grave risk of physical harm, and a much wider risk of psychological harm than that which he found to have been established. In respect of physical harm, Mr Hembrow referred to: the return of the children placing them in closer proximity to the perpetrator of the abuse upon them; the father’s propensity to violence as referred to in the affidavits of several witnesses; the possibility of violence from the paternal grandmother and the father’s brother; a greater risk of abduction and kidnapping than if they remained in New Zealand and the father’s obsessive desire to have the children recant the allegations which led to his conviction. In respect of psychological harm our attention was drawn to the factors already mentioned and to the evidence of Dr Zelas.

[21] Having considered Mr Hembrow’s submission, it is, in our view, apparent from the Family Court judgment that all of the matters raised in the course of his submission were fully canvassed and considered by the Judge and, where necessary, relevant findings made. In our opinion it has not been shown that he wrongly failed to find a grave risk of physical harm and a much wider risk of psychological harm than that which he found to have been established.

Children’s Objections:

[22] Mr Hembrow next drew our attention to the children’s objections to returning to the United States and referred us to the review of their attitudes as set out in the affidavit of Dr Zelas. Section 13(1)(d) provides that another ground which, if established, would justify the Court considering whether in the exercise of its discretion an order for return should be declined is “that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child’s views.” This was not advanced as a separate ground under s 13 in the appellant’s case nor did it need to be. We accept, as did the Family Court Judge, that their views are a relevant matter to be taken into account in considering the exercise of the Court’s discretion. The Family Court Judge dealt with this aspect of the matter in his judgment as follows:

“Dr Zelas refers to the children’s ‘objections’ in her report. She has dealt with each child individually. The children are aware of the abduction plan. [H]’s preference is to live in New Zealand, as is [E]’s. [E] does not have any great objection to returning to the USA provided she lives “not next door to Daddy though”. [N] prefers to live in New Zealand and said that if his mother decided to go back and live in the USA “I wouldn’t want to go - but if Mum went I’d probably go”. [L] is ambivalent about returning to the USA. He stated to Dr Zelas “I kinda want to and I kinda don’t”. Dr Zelas noted that none of the children objected to returning to their country of origin per se. In all the circumstances the children are unlikely to express a wish to return to the USA. They will tend to follow their mother’s lead.”

In the course of considering the exercise of his discretion he said with reference to this matter:

“I note the objections expressed by the children against a return. They are moderate and do not have much influence on me.”

We do not see any error in the way in which the Judge approached and dealt with this aspect of the case.

An Intolerable Situation?:

[23] Mr Hembrow next contended that returning the children would place them in an intolerable situation. The thrust of the case on appeal was directed to this concept much more than had been the case in the Family Court. Section 13(1)(c)(ii) provides that it is a ground which, if established, gives rise to the Court’s discretion to refuse an order for return. But that is not the issue in this context. The question now is whether the substance of what Mr Hembrow argues under this head (whether amounting to the statutory “intolerable situation” or not) is a relevant factor which the Family Court Judge failed to take into account in considering the exercise of his discretion.

[24] The intolerable and unacceptable situation contended for is submitted by Mr Hembrow to consist of 10 factors which he listed in his written submissions and enlarged upon orally. These factors may be summarised as follows:

1. An order for return would seriously disturb the children’s settled lives after (now) nearly 2 years in New Zealand;

2. They would be forced to return to an area where there was wide public knowledge of the abuse of them;

3. The New Zealand Government provided them the means to get to New Zealand and the Government is now a party to her and the children’s return;

4. The children will be subject to the father’s attempts to get them psychologically re-assessed with the clear aim of forcing them to recant;

5. If there are contempt of Court proceedings the children are potentially left in the situation of not having another care-giver available;

6. They would be forced to return to the area where the abuse occurred and the trial occurred resulting in the memories being re-lived;

7. Delay;

8. The order if made would be of no practical or real effect;

9. The father would not be entitled to visit the children while he is in prison;

10. Common sense must be exercised. The possible outcome of the custody/access proceedings in the United States would be an order of custody in the mother’s favour with no access to the father.

[25] With regard to item 3 we assume the “means to get to New Zealand” referred to, consist of the provision of fresh passports on the mother’s application and possibly other assistance in travel arrangements. There is no evidence beyond a brief passing reference to what the mother told the New Zealand Embassy, and the basis on which the passports were issued and any further assistance provided is unknown. In respect of the application for return the Government was under a treaty and statutory duty to act on the request made to it under the Convention. In our view this particular ground is to be excluded from consideration.

[26] Items 2 and 6 in Mr Hembrow’s list were substantially the basis on which the Family Court Judge made his finding of a grave risk of psychological harm.

[27] As to item 5 (possible contempt of Court proceedings) we note that, as part of the Hague Convention application, the father and his mother and brother each provided a written certificate that no legal action criminal or civil would be taken if the mother returned to the United States with the children and complied with the order already made and they further “pledge to pay all costs associated with their safe return to the US and any costs associated with their residency during the period of the appeals”. The Judge accepted that this did not exclude all possibility of contempt proceedings and took that into account as one of the matters relevant to the exercise of his discretion.

[28] Items 8, 9 and 10 deal with the same point in different ways. Clearly there is no question of the father getting a custody order at present because of his incarceration and, at least at this stage, there is no evidence of any possibility of visits by the children. The father is obviously still pursuing any avenues open to him to have the convictions set aside. The prospect of that, now that his direct rights of appeal have been exhausted, and as far as we can tell from this distance, must be slight. It has nevertheless not been abandoned and to what extent if at all, he has any hope of further review, it is not possible for us to say.

[29] There are also other issues such as access, where the children are to reside and decisions as to education and possibly, from time to time, other matters such as medical treatment. Access, as well as custody, is expressly mentioned in Article 1 of the Convention. There is already an order that the grandmother have visitation rights. As noted this order was made when the mother was in New Zealand and it was not opposed. Because of the difficulties giving rise to the stay away orders referred to in an earlier section of this judgment, and a conflict between what the grandmother says and what the mother says about the former’s involvement with the children, it seems that if the children did return to the United States the question of access would be contentious.

[30] It is impossible, in the context of the present proceedings, to form any view about the likely outcome. It is, however, a live issue and it is conceivable that a Court dealing with the substance of the issue could regard it as in the best interests of these children born in, and until 1999, brought up in the United States to maintain ongoing contact with their father’s family possibly by remaining in the United States or conceivably by permitting them to be taken to New Zealand subject to conditions designed to preserve whatever is possible of their relationship with their father’s family. Clearly this is a more limited area of the children’s interests and welfare than the issue of custody but, nevertheless, to the extent that it exists it requires to be taken into account.

[31] The other items relating to delay, disturbance in the children’s settled lives the implications of the abduction and kidnapping attempt, all form part of the relevant background and, we agree, require to be taken into account.

[32] The submission, as we understand it, is that when looking at the exercise of the discretion the Court can take a global or overall view and decline an order for return if it would be intolerable and completely unacceptable to make that order.

[33] We agree that in any given case all relevant circumstances arising from what is common ground, what is admitted and (in respect of contentious items) what is proved, require to be considered. In the present case, although the Family Court Judge elected to focus upon psychological harm (rather than whether the return of the children would place them in an intolerable situation), we think it is entirely clear from the judgment as a whole that he did consider all relevant circumstances while attaching rather more importance, but not exclusivity, to those that he specifically listed.

[34] Standing back and looking at the case in perspective it is clearly one which has unusual features which militate against an order for return. The combination of a parent in the country of return who is imprisoned for a very long period, the circumstance of the failed abduction conspiracy in which the father was involved, and the apparent strength of the mother’s case for removal of the children back to New Zealand, is perhaps striking. But in the end, in our opinion, those factors are clearly outweighed by others, including the purpose and policy of the act and the Convention, to effect a return of children, wrongfully removed from the jurisdiction of the place of their habitual residence, to enable questions relating to their welfare to be determined in that country.

[35] The appeal is dismissed. The order for return of all four children to the United States is confirmed. Costs are reserved.