AFFAIRE

Texte complet non disponible

Nom de l'affaire

Fairfax v. Ireton [2009] 1 NZLR 540

Référence INCADAT

HC/E/AU 1017

Juridiction

Pays

Nouvelle-Zélande

Degré

Première instance

États concernés

État requérant

Nouvelle-Zélande

État requis

Australie

Décision

Date

24 November 2008

Statut

Infirmé en appel

Motifs

Droit de garde - art. 3 | Décision ou attestation selon l'article 15

Décision

Déclaration selon l'article 15 prononcée

Article(s) de la Convention visé(s)

3 5 15

Article(s) de la Convention visé(s) par le dispositif

3 5 15

Autres dispositions

-

Jurisprudence | Affaires invoquées

-

Publiée dans

-

INCADAT commentaire

Mécanisme de retour

Droit de garde
Décision ou attestation selon l'article 15
Jurisprudence néo-zélandaise - droit de garde

RÉSUMÉ

Résumé disponible en EN | FR

Facts

The child, a boy, aged eleven and a half at the date of the alleged wrongful removal, was born in New Zealand in September 1996. The parents never married but cohabited from two months after the boy's birth until late 1999 / early 2000.

In 2007 the parents agreed a parenting plan with the aid of a court appointed counsellor, under which the father was to have care of the child for two days and then four days on alternate weeks. The plan was never embodied in a formal court order.

In February 2008 the mother took the child to Australia. The father then sought to secure the return of the child pursuant to the Hague Convention. In June 2008 the Australian Central Authority asked its New Zealand counterpart for an Article 15 declaration as to whether the removal would be considered wrongful under New Zealand law.

Ruling

Article 15 declaration granted; alternative conclusions submitted by the New Zealand court depending on the factual determinations made by the Australian court seised of the return proceedings.

Grounds

Rights of Custody - Art. 3

The Court considered existing New Zealand case law on rights of custody and noted that there was a divergence with case law emanating from other Contracting States. The two panel bench concentrated on the judgment of the New Zealand Court of Appeal in Dellabarca v. Christie [1999] 2 NZLR 548 [INCADAT Reference: HC/E/NZ 295].

The Court concluded that the latter decision was neither binding nor indeed highly persuasive authority for the proposition that the father's inchoate rights afforded him rights of custody for the purpose of the Convention. The Court further held that Dellabarca was not authority for the broad proposition that a non-guardian father automatically had Convention rights of custody. In reaching this decision the Court held that Convention jurisprudence had evolved and it was undesirable for New Zealand law on the Convention to be out of step with the law of other signatory states.

In light of the analysis of Baroness Hale in Re D. (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 [INCADAT Reference: HC/E/UKe 880] it was doubtful whether the assertion in Dellabarca that the Convention was not directly concerned with guardianship or even custody, justified the interpretation that had been adopted by some New Zealand courts as regards rights of custody.

Although the Convention did not use national concepts directly there still had to be a direct focus on whether a parent under the law of the State of the child's habitual residence had, and was exercising, Article 5(a) rights of custody. Domestic law may not determine the meaning of the Article 5(a) phrase "rights of custody", but there had to be rights of custody.

If under New Zealand law a parent had no rights of custody, then it was difficult to see how such a parent could possibly claim Article 5(a) rights. The elements of Article 5(a), namely, "rights relating to the care of the child", and, the "right to determine the child's residence", should be considered conjunctively and not disjunctively as suggested in Dellabarca.

In light of this assessment the Court concluded that the applicant father would not have rights of custody if he was not found to be a guardian of the child. The Court regretted the practical consequences of such an outcome, noting that the child had still suffered harm as a result of the removal.

The Court further added that the parenting plan entered into by the parents did not confer rights of custody on the father. It suggested however that rights might flow from such an agreement which expressly stipulated that a child was not to be taken outside of the country or where the child's residence was not to be changed without the consent of both parents.

Article 15 Decision or Determination

The Court also affirmed that the Article 15 mechanism was a useful one and particularly valuable where the passage of abducted children between the States involved was infrequent. The Court made a decision or determination but with alternative conclusions given that it could not determine disputed questions of fact:

(a)        If the parents had been living together as de facto partners at the time of the birth then the father would be a guardian of the child with custody rights, rendering the removal wrongful;
(b)        If the parents had not been living together as de facto partners then the mother would be the sole guardian and so entitled to remove the child unilaterally.

INCADAT comment

Article 15 Decision or Determination

The Role and Interpretation of Article 15

Article 15 is an innovative mechanism which reflects the cooperation which is central to the 1980 Hague Convention.  It provides that the authorities of a Contracting State may, prior to making a return order, request that the applicant obtain from the authorities of the child's State of habitual residence a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.

Scope of the Article 15 Decision or Determination Mechanism

Common law jurisdictions are divided as to the role to be played by the Article 15 mechanism, in particular whether the court in the child's State of habitual residence should make a finding as to the wrongfulness of the removal or retention, or, whether it should limit its decision to the extent to which the applicant possesses custody rights under its own law.  This division cannot be dissociated from the autonomous nature of custody rights for Convention purposes as well as that of 'wrongfulness' i.e. when rights of custody are to be deemed to have been breached.

United Kingdom - England & Wales
The Court of Appeal favoured a very strict position with regard to the scope of Article 15:

Hunter v. Murrow [2005] EWCA Civ 976, [2005] 2 F.L.R. 1119 [INCADAT Reference: HC/E/UKe 809].

The Court held that where the question for determination in the requested State turned on a point of autonomous Convention law (e.g. wrongfulness) then it would be difficult to envisage any circumstances in which an Article 15 request would be worthwhile.

Deak v. Deak [2006] EWCA Civ 830 [INCADAT Reference: HC/E/UKe 866].

This position was however reversed by the House of Lords in the Deak case:

Re D. (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, [INCADAT cite: HC/E/UKe 880].

Whilst there was unanimity as to the utility and binding nature of a ruling of a foreign court as to the content of the rights held by an applicant, Baroness Hale, with whom Lord Hope and Lord Brown agreed, further specified that the foreign court would additionally be much better placed than the English court to understand the true meaning and effect of its own laws in Convention terms.

New Zealand
Fairfax v. Ireton [2009] NZFLR 433 (NZ CA), [INCADAT cite: HC/E/NZ 1018].

A majority in the Court of Appeal, approving of the position adopted by the English Court of Appeal in Hunter v. Morrow, held that a court seised of an Article 15 decision or determination should restrict itself to reporting on matters of national law and not stray into the classification of a removal as being wrongful or not; the latter was exclusively a matter for the court in the State of refuge in the light of its assessment of the autonomous law of the Convention. 

Status of an Article 15 Decision or Determination

The status to be accorded to an Article 15 decision or determination has equally generated controversy, in particular the extent to which a foreign ruling should be determinative as regards the existence, or inexistence, of custody rights and in relation to the issue of wrongfulness.

Australia
In the Marriage of R. v. R., 22 May 1991, transcript, Full Court of the Family Court of Australia (Perth), [INCADAT cite: HC/E/AU 257];

The court noted that a decision or determination under Article 15 was persuasive only and that it was ultimately a matter for the French courts to decide whether there had been a wrongful removal.

United Kingdom - England & Wales
Hunter v. Murrow [2005] EWCA Civ 976, [2005] 2 F.L.R. 1119, [INCADAT cite: HC/E/UKe 809].

The Court of Appeal held that an Article 15 decision or determination was not binding and it rejected the determination of wrongfulness made by the New Zealand High Court: M. v. H. [Custody] [2006] NZFLR 623 (HC), [INCADAT cite: HC/E/UKe 1021]. In so doing it noted that New Zealand courts did not recognise the sharp distinction between rights of custody and rights of access which had been accepted in the United Kingdom.

Deak v. Deak [2006] EWCA Civ 830, [INCADAT cite: HC/E/UKe 866].

The Court of Appeal declined to accept the finding of the Romanian courts that the father did not have rights of custody for the purposes of the Convention.

This position was however reversed by the House of Lords in the Deak case:

Re D. (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, [INCADAT cite: HC/E/UKe 880].

The House of Lords held unanimously that where an Article 15 decision or determination was sought the ruling of the foreign court as to the content of the rights held by the applicant must be treated as conclusive, save in exceptional cases where, for example, the ruling had been obtained by fraud or in breach of the rules of natural justice. Such circumstances were absent in the present case, therefore the trial court and the Court of Appeal had erred in disregarding the decision of the Bucharest Court of Appeal and in allowing fresh evidence to be adduced.

As regards the characterisation of the parent's rights, Baroness Hale, with whom Lord Hope and Lord Brown agreed, held that it would only be where this was clearly out of line with the international understanding of the Convention's terms, as might well have been the case in Hunter v. Murrow, should the court in the requested state decline to follow it. For his part Lord Brown affirmed that the determination of content and classification by the foreign court should almost invariably be treated as conclusive.

Switzerland
5A_479/2007/frs, Tribunal fédéral, IIè cour civile, 17 octobre 2007, [INCADAT cite: HC/E/CH 953].

The Swiss supreme court held that a finding on custody rights would in principle bind the authorities in the requested State.  As regards an Article 15 decision or determination, the court noted that commentators were divided as to the effect in the requested State and it declined to make a finding on the issue.

Practical Implications of Seeking an Article 15 Decision or Determination

Recourse to the Article 15 mechanism will inevitably lead to delay in the conduct of a return petition, particularly should there happen to be an appeal against the original determination by the authorities in the State of habitual residence. See for example:

Re D. (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, [INCADAT cite: HC/E/UKe 880].

This practical reality has in turn generated a wide range of judicial views.

In Re D. a variety of opinions were canvassed. Lord Carswell affirmed that resort to the procedure should be kept to a minimum. Lord Brown noted that it would only be used on rare occasions. Lord Hope counselled against seeking perfection in ascertaining whether a removal or retention was wrongful, rather a balance had to be struck between acting on too little information and searching for too much. Baroness Hale noted that when a country first acceded to the Convention Article 15 might be useful in cases of doubt to obtain an authoritative ruling on the content and effect of the local law.

New Zealand
Fairfax v. Ireton [2009] NZFLR 433 (NZ CA), [INCADAT cite: HC/E/NZ 1018].

The majority in the Court of Appeal, suggested that Article 15 requests should only rarely be made as between Australia and New Zealand, given the similarities of the legal systems.

Alternatives to Seeking an Article 15 Decision or Determination

Whilst courts may simply wish to determine the foreign law in the light of the available information, an alternative is to seek expert evidence.  Experience in England and Wales has shown that this is far from fool-proof and does not necessarily result in time being saved, see: 

Re F. (A Child) (Abduction: Refusal to Order Summary Return) [2009] EWCA Civ 416, [2009] 2 F.L.R. 1023, [INCADAT cite: HC/E/UKe 1020].

In the latter case Thorpe L.J. suggested that greater recourse could be made to the European Judicial Network, through the International Family Law Office at the Royal Courts of Justice. Pragmatic advice could be offered as to the best route to follow in a particular case: whether to go for a single joint expert; whether to go for an Article 15 decision or determination; or whether to go for an opinion from the liaison judge as to the law of his own country, an opinion that would not be binding but which would perhaps help the parties and the trial court to see the weight, or want of weight, in the challenge to the plaintiff's ability to cross the Article 3 threshold.

New Zealand Case Law

A very wide interpretation has been given to rights of custody for the purposes of the Convention by the New Zealand courts.  Notably, a right of intermittent possession and care of a child has been regarded as amounting to a right of custody as well as being an access right. It has been held that there is no convincing reason for postulating a sharp dichotomy between the concepts of custody and access.

Gross v. Boda [1995] 1 NZLR 569 [INCADAT cite: HC/E/NZ 66];

Dellabarca v. Christie [1999] 2 NZLR 548 [INCADAT cite: HC/E/NZ 295];

Anderson v. Paterson [2002] NZFLR 641 [INCADAT cite: HC/E/NZ 471].

This interpretation has been expressly rejected elsewhere, see for example:

United Kingdom - England & Wales
Hunter v. Murrow [2005] EWCA Civ 976, [2005] 2 F.L.R. 1119 [INCADAT cite: HC/E/UKe @809@].