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Thomas v Dean [2019] NZHC 1934 (9 August 2019)

Last Updated: 23 August 2019

RESERVED JUDGMENT OF DOBSON J

[1] This is an appeal from a decision of Judge Smith in the Family Court at Palmerston North, declining an application for an order to return an 11 year old child (the child) to Australia.¹ The application was brought under Part 4 of the Care of Children Act 2004 (the Act), provisions of which incorporate into New Zealand law the Convention on Civil Aspects of International Child Abduction, as signed at The Hague on 25 October 1980 (the Hague Convention).

¹ Thomas v Dean [2019] NZFC 2180.

THOMAS v DEAN [2019] NZHC 1934 [9 August 2019]

[2] In accordance with current practice, the names of the parties to the litigation have been disguised by the adoption in this judgment of fictitious names and I authorise the reporting of the judgment under those fictitious names.

[3] It was not disputed that grounds for an order to return the child had been made out. He had been wrongfully removed from Australia, which country was his habitual residence, in breach of the father’s rights to custody.² The issue in the proceeding was whether the mother could make out one or more of the grounds for resisting an order for return, as provided for in s 106(1) of the Act. Judge Smith held that a defence to a removal order was made out in that the child objected to being returned to Australia and he had attained an age and degree of maturity at which it was appropriate to give weight to the child’s views.³ Having made that finding, the Judge applied his residual discretion to decline the application for return.

The statutory framework

[4] The relevant statutory provisions are in ss 105 and 106 of the Act, which provide:

105. Application to court for return of child abducted to New Zealand

(1) An application for an order for the return of a child may be made to a court having jurisdiction under this subpart by, or on behalf of, a person who claims—

(a) that the child is present in New Zealand; and

(b) that the child was removed from another Contracting State in breach of that person’s rights of custody in respect of the child; and

(c) that at the time of that removal those rights of custody were actually being exercised by that person, or would have been so exercised but for the removal; and

(d) that the child was habitually resident in that other Contracting State immediately before the removal.

(2) Subject to section 106, a court must make an order that the child in respect of whom the application is made be returned promptly to the person or country specified in the order if—

² Care of Children Act 2004, s 105(1)(a)–(d).

³ Section 106(1)(d).

(a) an application under subsection (1) is made to the court; and

(b) the court is satisfied that the grounds of the application are made out.

(3) A court hearing an application made under subsection (1) in relation to the removal of a child from a Contracting State to New Zealand may request the applicant to obtain an order from a court of that State, or a decision of a competent authority of that State, declaring that the removal was wrongful within the meaning of Article 3 of the Convention as it applies in that State, and may adjourn the proceedings for that purpose.

(4) A court may dismiss an application made to it under subsection (1) in respect of a child or adjourn the proceedings if the court—

(a) is not satisfied that the child is in New Zealand; or

(b) is satisfied that the child has been taken out of New Zealand to another country.

106. Grounds for refusal of order for return of child

(1) If an application under section 105(1) is made to a court in relation to the removal of a child from a Contracting State to New Zealand, the court may refuse to make an order under section 105(2) for the return of the child if any person who opposes the making of the order establishes to the satisfaction of the court—

(a) that the application was made more than 1 year after the removal of the child, and the child is now settled in his or her new environment; or

(b) that the person by whom or on whose behalf the application is made—

(i) was not actually exercising custody rights in respect of the child at the time of the removal, unless that person establishes to the satisfaction of the court that those custody rights would have been exercised if the child had not been removed; or

(ii) consented to, or later acquiesced in, the removal; or

(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; or

(d) that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate, in addition

to taking them into account in accordance with section 6(2)(b), also to give weight to the child’s views; or

(e) that the return of the child is not permitted by the fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.

...

The facts

[5] The child is currently a few weeks short of his twelfth birthday. He has been in the primary care of his mother since birth. At the time she fell pregnant with the child, she was not in a settled domestic relationship with the father and the two never lived together. The mother claims that the father did not want the child and physically assaulted her during her pregnancy in an attempt to cause her to lose the child.

[6] The father denies physically assaulting the mother when she was pregnant, or verbally abusing or stressing her – he claims that all such allegations are untrue.

[7] There are differences between the parents as to the extent of the father’s involvement in the child’s life. The mother complained that the father would not adhere to any routine for occasionally caring for the child, but he insists that arrangements had to be flexible because of his shift work responsibilities. He has been making child care maintenance payments.

[8] Each parent alleges that the behaviour of the other is affected by drug-taking. The mother complains that the father was abusive towards her and subjected her to both emotional and physical violence. The last incident of physical violence occurred in 2017 and she has obtained a protection order against him.

[9] Since the birth of the child, the mother has had a relationship with another man (Mr A) with whom she has two younger daughters. That relationship was marked by serious levels of domestic violence. Police records reveal frequent family violence callouts. It was submitted on behalf of the father that the mother was not consistently helpful to the Police in their attempts to prosecute Mr A, despite having obtained a protection order against him.
[10] The mother’s evidence is that by late 2018, she was advised by Victim Assist, a State agency in Queensland, to leave Australia with her children as the practical means of bringing the domestic violence against her to an end. She was given some
$14,000 in financial assistance for the cost of relocation. Her evidence is that she was advised by the Queensland Police to keep her intentions of leaving Australia secret, but counsel for the father does not accept that without corroboration, which has not been forthcoming.

[11] On 2 November 2018, the mother left Australia with the child and his two half sisters. The child was aware that the move was being planned, and kept it secret from all except one school friend.

[12] Since arriving in New Zealand, the mother has made clear to the child that if an order was made requiring his return to Australia, she and his half sisters would not go with him but would stay in New Zealand.

[13] On 11 December 2018, the father applied under the Hague Convention for the return of the child on the basis that he had been wrongfully removed from, or retained outside, Australia. The District Court appointed Ms Alexander as lawyer for the child in the proceeding, and he has been assessed by a clinical psychologist, Mr Garner, who reported to the District Court about the issues raised by the application.

[14] A letter dated 7 December 2018 from a teacher at the child’s school in Queensland is annexed to the father’s reply affidavit. The teacher records observations that the child was often upset about circumstances at home when he was with his mother, and that by comparison he was calmer and more positive if he had been spending time with his father. The letter states that the father often enquired as to whether the child was doing his homework and keeping up with his school work on the occasions when the child had been with the father over the weekend. Ms Hickman, counsel for the mother, submitted that the letter was unreliable hearsay that ought to be disregarded.

[15] Both Ms Alexander and Mr Garner reported positively on the child’s new environment in New Zealand and that he is enjoying being here.

The Hague Convention and the United Nations Convention on the Rights of the Child

[16] The underlying premise of the Hague Convention is that disputes over care and control of children should be determined in the courts of the jurisdiction that comprise the child’s habitual residence. Removal of children from their country of habitual residence without lawful permission or consent of all guardians is treated as abduction, and signatories to the Hague Convention commit to requiring the prompt return of children that have been removed in such circumstances.

[17] The Hague Convention is treated as having a deterrent purpose or function. In commenting on the s 106 exceptions to what is otherwise the requirement to order return of a child under s 105, Tipping J, for a majority of the Supreme Court, observed:⁴

[40] ... all the exceptions must be approached with an understanding of their shared context, within a Convention that has the general purpose of deterring child abductions. That is achieved by ensuring prompt return in cases where no ground to refuse return is established. When such a ground is established the Convention envisages an inquiry into whether its deterrent purpose should prevail over the interests of the particular child or children.

[18] More recently, Jagose J has observed:⁵

[22] I also acknowledge the wider deterrent function of the Convention. Justice Fisher properly recognised the interests of children globally are promoted by a “firm attitude to the return of children” in strictly applying the Convention requirements.

[19] When considering the relevant ground for refusing an order for return under s 106 of the Act, namely an objection by the child (s 106(1)(d)), the purposes of the Hague Convention have to accommodate the provisions of the United Nations Convention on the Rights of the Child (UNCROC), which was confirmed in 1989. New Zealand is a signatory. Article 12(1) of the UNCROC states:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

⁴ Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289 (citation omitted).

⁵ S v P [2018] NZHC 2645 (citation omitted).

[20] The approach to assessment of whether a child is sufficiently mature and, if so, how their views are to be treated has also been considered in numerous cases. Ms Hickman submitted that the trend is towards greater recognition that children have a right to have their views heard and respected. She cited observations by Lady Hale in a decision of the House of Lords where it was observed:⁶

Especially in Hague Convention cases, the relevance of the child’s views to the issues in the case may be limited. But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

[21] In cases where one or more of the exceptions in s 106 are made out, the Court must still apply a residual discretion as to whether, in the circumstances of the case, it is appropriate to refuse to make an order for return of the child. There is also jurisprudence on the approach to that residual discretion. In another appeal to the House of Lords in 2007 dealing with girls aged 13 and 10, Lady Hale acknowledged a line of authorities in which the discretion had been approached on the basis that refusing an order for return should only occur in “exceptional” cases. Lady Hale rejected any such requirement:⁷

... I have no doubt at all that it is wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which return may be refused are themselves exceptions to the general rule. That in itself is sufficient exceptionality. It is neither necessary nor desirable to import an additional gloss into the Convention.

[22] In the same appeal, Lady Hale added the following observation:⁸

... These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child’s views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child’s objections, the extent to which they are “authentically her own” or the product of the influence of the abducting parent, the extent to

⁶ In re D (a child) [2006] UKHL 51, [2007] 1 AC 619 at [57].

⁷ Re M and another (children) [2007] UKHL 55, [2008] 1 AC 1288 at [40].

⁸ At [46].

which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child’s objections should only prevail in the most exceptional circumstances.

The approach on appeal

[23] In appeals such as the present, issues arising on determinations under ss 105 and 106 are general appeals where the High Court can substitute its own findings on fact and law, in terms of the standard in Austin, Nichols & Co Inc v Stichting Lodestar.⁹ An appellant contending for a return order has the onus to make out grounds for return under s 105. Those grounds are conceded and therefore it is unnecessary to revisit the Judge’s findings that such grounds were made out.

[24] Once that point has been reached, in the Family Court the onus shifts to a respondent resisting an order to make out one of the grounds for refusal under s 106. On appeal, the present appellant bears an onus to establish that the Family Court Judge was wrong to find one of the s 106 grounds made out.

[25] Thereafter there is a challenge to the Judge’s approach to the residual discretion. That aspect of the appeal, being from the exercise of a discretion, is assessed on the more limited basis prescribed in May v May.¹⁰

The Family Court judgment

[26] The Judge conducted the Family Court hearing on the basis of affidavits and submissions, acknowledging that the absence of cross-examination added to the difficulty in making factual determinations. The Judge observed that the mother’s actions in removing herself, her two daughters and the child from the violent relationship was the sensible course for her to take, but observed that it was unnecessary for her to move to New Zealand to achieve that objective.

[27] From the child’s perspective, the Judge considered that he may be uncomfortable in the physical environment of his father’s home and that he would find

⁹ Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

¹⁰ May v May (1982) 1 NZFLR 165 (CA). See [48] below.

it stressful to be separated from his mother and his sisters. The concerns he could identify for the child related more to his general welfare than potential harm. The Judge found that a grave risk of the child’s return exposing him to physical or psychological harm or otherwise placing him in an intolerable situation in terms of s 106(1)(c) could not be made out. The mother has not challenged that finding on appeal.

[28] The Judge found that the child had conveyed clearly to Ms Alexander and Mr Garner his objection to being returned to Australia. In assessing the weight to be given to that objection, the Judge took into account the same assessments by both of them, that:¹¹

Although not yet 12, he is presented as a confident, articulate and rational young man who is of an age and degree of maturity at which it is appropriate to give weight to his views.

[29] The Judge was mindful of the influence from his mother in the views the child expressed and acknowledged that certain of the comments and criticisms about his father that were raised with Mr Garner could only have been learnt by the child from dialogue with his mother. However, he was satisfied that there had not been any undue influence exerted over the child.

[30] In assessing the residual discretion, the Judge noted that returning the child to Australia would remove him from the stability of his current family unit, of which he had been a part all of his life, and require return to Australia where he would be in the care of his father who the child perceived to be unsafe and uncaring. The Judge acknowledged that the potential psychological harm to the child would include the prospect of his views being disregarded if, contrary to his clear preference to remain in New Zealand, he was now required by the Court to return to Australia. An order for return would not be restoring the status quo as living permanently with his father was not a situation he had experienced before. Given all those circumstances, the Judge considered he should exercise his discretion to refuse an order for return.

¹¹ Thomas v Dean, above n 1, at [117].

Arguments on appeal

[31] Mr Logie’s instructions were from the New Zealand Central Authority, which administers New Zealand’s obligations under the Hague Convention. A concern underlying his submissions was the possible precedential impact of recognising an exception under s 106 in circumstances that might be seen to lower the barrier for doing so and therefore risked eroding the commitment to enforcement of the Hague Convention.

[32] Mr Logie submitted that the Judge had erred in finding that the child’s view constituted an objection for the purposes of s 106(1)(d), and having determined that it was an objection the Judge arguably erred in finding that considerable weight should be given to it.

[33] Mr Logie criticised the Judge for having disregarded the evidence from the school teacher at the child’s school, written in support of the father’s position, and submitted that the Judge had failed to consider other factors that had influenced the child’s views as expressed to his lawyer and the psychologist. On the exercise of the discretion, Mr Logie argued that the Judge had failed to have regard to the principle that an abducting parent should not be permitted to shelter behind, and gain advantage from, a factual situation that she or he has created to develop a s 106 defence.

[34] Mr Logie submitted that the views of the child referred to in the evidence were insufficient to constitute an objection for the purposes of s 106. He cited authorities that required a distinction to be drawn between a clear preference and an objection.¹²

[35] Ms Alexander’s memorandum for the Judge reported:

[The child] says that he would object to going back to Australia 100%. He says that he was happy and excited at the thought of coming to New Zealand and starting a new life.

[36] The child in this case could hardly have expressed his objection to being returned to Australia more clearly. In his interactions with both the lawyer appointed

12. Secretary for Justice v Penney [1995] NZFLR 827; Paramore v Paramore FC Auckland FAM-2008-004-978, 23 June 2008.

on his behalf and the psychologist, the child made it perfectly clear that he did not want to be required to live in Australia.

[37] The child did tell Ms Alexander that, provided he was allowed to remain living in New Zealand, he would be happy to return to Australia for visits with his father. That does not suggest inconsistency in views, but rather a measure of discernment in distinguishing between his preference for full-time location in New Zealand, and occasional visits to Australia to maintain contact with his father.

[38] In arguing that the Judge had placed too much weight on the child’s objection to returning to Australia and reasons for it, Mr Logie submitted that the child’s views ought to have been substantially discounted because of the apparent influence on his views exerted by his mother. Ms Alexander noted matters described to her by the child that he could not have observed, such as that his father had tried to kill him while he was still in his mother’s tummy by pushing on her stomach, and disputes about his mother not paying soccer fees for him, which appeared to Ms Alexander to reflect adult issues which someone had shared with him.

[39] In the circumstances of this case, it is entirely predictable that the child will identify with the views and concerns of his mother when she has been the primary caregiver all his life, and the parent with whom he has always lived. Where there has been conflict between his parents and the child perceives his father to be the aggressor in physical and emotional abuse of his mother, an 11 year old would predictably form staunchly supportive views of his mother. The extent of that support might well be bolstered by the influence of on-going conflict with another father-figure, namely in this case Mr A. A pattern of protective views about his mother, reinforced by reactions to the conduct of Mr A, could also affect the terms in which the child expressed concerns about his own father.

[40] The child is assessed as a mature and intelligent 11 year old. It is most likely that he would have appreciated the purpose of the interviews with the lawyer appointed on his behalf and the psychologist, and would either consciously or unconsciously emphasise the views likely to persuade the interviewers of the importance of his wish to be allowed to remain in New Zealand.
[41] I accept Mr Logie’s concerns that a range of such considerations should have applied to reduce the weight appropriately given to the clear views reported from the child. It is, however, a question of degree. Neither of the interviewers appears to have had any doubts about the genuineness of the child’s views, for which there is an entirely rational explanation. His views are consistent with other evidence suggesting he was likely to have a firm preference to continue living with his mother. Acknowledging all of these factors, I am not persuaded that the Judge erred in attributing the weight that he did to the reported views of the child.

[42] A discrete aspect of Mr Logie’s criticism was that it was wrong for the mother to confront the child with the inevitability that, if he was returned to Australia, he would have to go on his own as she and his half sisters would be remaining in New Zealand. This is linked to the further criticism that a parent guilty of unlawful removal of a child should not be able to engineer circumstances in which she could then take advantage of the situation she had created to frustrate the operation of the Hague Convention.

[43] Mr Logie submitted that the Court should not have accepted unquestioningly the mother’s assertion that if the child was ordered to return to Australia, she and his half sisters would not relocate to be with him. Mr Logie argued that the Court should not have dismissed the prospect that, if forced into it, the mother might well return to Australia to be with the child. This proposition affected an analysis of the child’s objection where it had arguably been influenced against his father by a hollow threat on the mother’s part to require him to return to Australia alone. In addition, it diluted the weight that could be given to the child’s objection and it was inappropriate behaviour on the mother’s part that compounded the circumstances in which she had allegedly engineered a change of circumstances she sought to use to subvert the purposes of the Hague Convention.

[44] I can understand why counsel for the father would raise this objection to the mother’s unqualified assertion that she and the two half sisters would remain in New Zealand. However, I am not satisfied that there is anything in the evidence which would justify a finding that the mother’s stated determination to remain in New Zealand is not genuine. As Ms Hickman submitted, the authorities in Australia
provided financial support to the extent of about $14,000 to enable the mother to relocate. That was presumably made available because the authorities were satisfied the mother did not have the resources to fund those expenses herself. In that event, there would be a financial impediment to returning the whole family to Australia. Further, there is every indication on the evidence that the family is happier in New Zealand, and the important aim of finally freeing the mother from a pattern of serious and on-going domestic violence has been achieved.

[45] It is speculative, but as Mr Logie acknowledged, if an order required the child to be returned to Australia and the mother chose to accompany him with his half sisters, there would be a real likelihood that they would avoid Queensland as the source of the unhappy situation requiring their move to New Zealand. Whilst that would achieve the purpose of the Hague Convention by ensuring that the Australian courts dealt with contested issues of care and control, the mother might well elect to return to a location as far, or even further away, from their previous home in Queensland than the present New Zealand location.

[46] I am therefore not prepared to revisit the Judge’s reasoning on the basis that he erred in accepting at face value the statements from the mother that she would remain in New Zealand with the child’s half sisters if an order were made requiring his return to Australia.

[47] I am satisfied that the child has expressed a clear objection to being returned to Australia, and that he has a degree of maturity which makes it appropriate to take that objection into account. Despite reducing the weight that can be given to that objection to recognise the risk that it has been somewhat overstated by the mother’s influence, the Court is still left with a genuine objection, expressed in unequivocal terms and for which there is a rational explanation. The ground for refusing an order for return is therefore made out.

The residual discretion

[48] The next aspect of the appeal is a challenge to the exercise of a statutory discretion. On this aspect, the father needs to establish that the Judge acted on a wrong
principle, took into account some irrelevant matter or failed to take into account a relevant matter or produced a decision that was plainly wrong.¹³

[49] The first factor allegedly overlooked was the deterrent purpose, policies and objectives of the Hague Convention. Mr Logie submitted this was especially important where the mother had contrived to subvert the purposes of the Hague Convention by removing the child to New Zealand in a carefully planned abduction, which wrongful removal would be rewarded if the discretion was exercised in accordance with the child’s wishes.

[50] Mr Logie raised a number of criticisms of the mother’s conduct which he submitted counted further against the residual discretion being exercised in accordance with the child’s wishes. He criticised the mother for not having sought assistance from the Family Court in Australia where arguably the problems confronting the mother could have been resolved without her resorting to the self-help remedy of abduction. There had been no consultation or co-operation between the parents as to the relocation, and the abduction severed the continuity of arrangements for care of the child, contrary to the principles in s 5 of the Act. These criticisms of the mother’s conduct were made in a context where Mr Logie urged a finding that the views the child had expressed to the psychologist and the lawyer appointed for him resulted from undue influence and pressure the mother had exerted on him. I was invited to draw that inference from all the circumstances, without any clear evidence that the forms of influence recognised in [38] and [39] above had gone beyond those which naturally arise.

[51] I am not persuaded that the Judge approached the exercise of his discretion on a wrong basis, or that he failed to have regard to considerations that ought to have influenced his discretionary decision.

[52] Making every allowance for the influences on the child in forming the views he expressed to those interviewing him, there remain logical and rational reasons for those views. It is equally credible that they would be genuinely important to the child, justifying him expressing them in strong terms.

¹³ May v May, above n 10.

[53] It can hardly be said that the mother contrived the circumstances of an on-going pattern of serious domestic violence to an extent that a government agency encouraged and financially facilitated her removal to New Zealand. The father cannot re-write the history of an apparently close and loving connection between the mother as primary caregiver and the child for the whole of his life. The value of that environment to the child is bolstered by the presence of his two younger half sisters.

[54] In all the circumstances of the predicament of the mother and of the child, when weighed against the legitimate interests of the father and New Zealand’s commitment to uphold the Hague Convention, I cannot accept that the purposes of the Convention have been subverted by refusing an order for return. This is because, on any view, requiring return would legitimately be perceived by the child himself as a substantial injustice, disregarding his clearly expressed and reasonably justified views on where he should live. It is not a case where the mother’s conduct has been sufficiently egregious to overrule the child’s clear preference in order to deter the mother and others in such circumstances from conduct that may be seen as subverting the Hague Convention.

[55] Accordingly, the appeal is dismissed.

Dobson J

Solicitors:

John Logie, Palmerston North for appellant

Richard Lewis Law, Palmerston North for respondent Beverley Alexander, Raumati, counsel for child