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AFFAIRE

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Nom de l'affaire

MHS v. PIW [2010] NZHC 1462

Référence INCADAT

HC/E/NZ 1226

Juridiction

Pays

Nouvelle-Zélande

Degré

Deuxième Instance

États concernés

État requérant

Australie

État requis

Nouvelle-Zélande

Décision

Date

12 August 2010

Statut

Définitif

Motifs

Objectifs de la Convention - Préambule, art. 1 et 2 | Risque grave - art. 13(1)(b) | Questions liées au retour de l'enfant

Décision

Recours rejeté, retour ordonné

Article(s) de la Convention visé(s)

3 13(1)(a) 13(1)(b)

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

3 13(1)(a) 13(1)(b)

Autres dispositions

-

Jurisprudence | Affaires invoquées

-

Publiée dans
http://www.nzlii.org/nz/cases/NZHC/2010/1462.html

INCADAT commentaire

Exceptions au retour

Risque grave de danger
Jurisprudence australienne et néo-zélandaise

RÉSUMÉ

Résumé disponible en EN

Facts

The proceedings concerned a child born in Australia in August 2006, to an Australian father and a Maori (New Zealand) mother. The parents, who were not married, had a volatile relationship. They separated in the latter part of 2008, agreeing that the child would live with the mother during the week and with the father at weekends. The child was diagnosed as displaying behaviour indicative of the lower end of the Autistic Spectrum Disorder, which was possibly Asperger's Syndrome.

In June 2009, the mother obtained a protection order against the father. The former family home was sold in August 2009. On 14 October 2009, after several weekends of contact occurring as per the parenting agreement, the mother took the child to New Zealand. The father petitioned for the return of the child.

On 17 June 2010, the Family Court, New Plymouth ruled that the removal of the child was wrongful and that none of the exceptions of the 1980 Hague Child Abduction Convention was applicable. The Family Court initially deferred making a return order to allow for practical arrangements to be put in place to facilitate the voluntary return of mother and child.

The mother appealed, pursuing the same arguments raised in the Family Court. Once the appeal was filed a formal return order was issued to avoid any procedural difficulties.

Ruling

Appeal dismissed and return ordered, subject to a one-week delay; the removal was wrongful and none of the exceptions had been proved to the standard required under the 1980 Hague Child Abduction Convention.

Grounds

Aims of the Convention - Preamble, Arts 1 and 2


The Court, having reviewed New Zealand case law, noted that it was not its function to determine the underlying merits of whether the child was better off in one country or another. It acknowledged that whilst under the Care of Children Act 2004 the welfare and best interests of the child must be the first and paramount consideration (s. 4(1)), this section did not limit subpart 4 of Part 2 of the Act which implemented the 1980 Hague Child Abduction Convention in New Zealand law (s. 4(7)).

The Court accepted that the primary emphasis of the Convention was on the prompt return of children wrongfully removed or retained, and the Court of the country of the child's habitual residence was presumed to be the appropriate forum for determining custody and access issues.

The future of other children had to be considered. Their interests would be promoted by demonstrating to potential abductors that there was no future in interstate abductions. A firm attitude to the return of children would discourage parents who might otherwise be tempted to contemplate unilateral removal.

Grave Risk - Art. 13(1)(b)


The Court held that in assessing whether the child would be subjected to a grave risk of harm if returned, it must take into account the similar content of Australia's laws that provided for the welfare and best interests of children, and the sophistication of its legal system in dealing with issues concerning parenting and contact.

The Court accepted that the mother had raised issues that gave rise to a legitimate concern that the father might be given to inappropriate behaviours directed at her, and that those behaviours would take place in the presence of the child. That in turn might pose difficulty for the child's future development and well-being, especially having regard to his special needs. The questions raised about the father's past conduct were held to have implications in respect of the future parenting and contact arrangements that should apply.

The Court held however that the issues raised were ultimately directed to which country's courts were the more appropriate to deal with those issues. The 2004 Act was clear that the issues should be determined by the Australian courts unless one of the exceptions to return was established.

The Court was prepared to assume that the mother's description of the father's violent and aggressive behaviour towards her was as described, but held that it was not convinced that any of the issues could not be accommodated by appropriate orders in Australia. The Court ruled that the trial judge had not erred in finding the child would face neither a grave risk of psychological harm or of an intolerable situation if sent back.

Issues Relating to Return

The appeal was dismissed but the order was to lie in Court and not be enforced for a week to allow for practical arrangements to be made for the return.

Author of the summary: Peter McEleavy

INCADAT comment

See trial court judgment at: W v. S (Hague Convention) [2011] NZFLR 49 [INCADAT Reference: HC/E/NZ 1225].

Australian and New Zealand Case Law

Australia
In Australia a very strict approach was adopted initially with regard to Article 13(1) b), see:

Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane) [INCADAT cite: HC/E/AU @294@];

Director General of the Department of Family and Community Services v. Davis (1990) FLC 92-182 [INCADAT cite: HC/E/AU @293@].

However, following the judgment of the High Court in the joint appeals:

D.P. v. Commonwealth Central Authority; J.L.M. v. Director-General, New South Wales Department of Community Services (2001) 206 CLR 401; (2001) FLC 93-081), [INCADAT cite HC/E/AU @346@, @347@], where a literal interpretation of the exception was advocated, greater attention has now been focused on the risk to the child and the post return situation. 

In the context of a primary carer abducting parent refusing to return to the child's State of habitual residence, see:

Director General, Department of Families v. R.S.P. [2003] FamCA 623, [INCADAT cite HC/E/AU @544@].

With regard to a child facing a grave risk of psychological harm see:

J.M.B. and Ors & Secretary, Attorney-General's Department [2006] FamCA 59, [INCADAT cite HC/E/AU 871].

For recent examples of cases where the grave risk of harm exception was rejected see:

H.Z. v. State Central Authority [2006] FamCA 466, [INCADAT cite HC/E/AU 876];

State Central Authority v. Keenan [2004] FamCA 724, [INCADAT cite HC/E/AU @782@].

New Zealand
Appellate authority initially indicated that the change in emphasis adopted in Australia with regard to Article 13(1) b) would be followed in New Zealand also, see:

El Sayed v. Secretary for Justice, [2003] 1 NZLR 349, [INCADAT cite: HC/E/NZ 495].

However, in the more recent decision: K.S. v. L.S. [2003] 3 NZLR 837 [INCADAT cite: HC/E/NZ 770] the High Court of New Zealand (Auckland) has affirmed, albeit obiter, that the binding interpretation in New Zealand remained the strict interpretation given by the Court of Appeal in:

Anderson v. Central Authority for New Zealand [1996] 2 NZLR 517 (CA), [INCADAT cite: HC/E/NZ 90].