CRESSWELL v ROBERTS [2023] NZSC 62

CRESSWELL v ROBERTS [2023] NZSC 62 [25 May 2023]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND11D OF THE FAMILY COURT ACT 1980.FOR FURTHER INFORMATION, PLEASE SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 28/2023[2023] NZSC 62BETWEEN CRESSWELLApplicantAND ROBERTSRespondentCourt: O'Regan, Ellen France and Kós JJCounsel: B J R Keith and A J Summerlee for ApplicantV A Crawshaw KC, S R Jefferson KC and S M Wilson forRespondentJudgment: 25 May 2023JUDGMENT OF THE COURTA The applications for an extension of time to apply for leaveto appeal Roberts v Cresswell [2022] NZCA 625 and theCourt of Appeal's decision declining the application toadjourn the substantive hearing are dismissed.B The application for leave to appeal (Roberts v Cresswell[2023] NZCA 36) is dismissed.C There is no order as to costs.____________________________________________________________________REASONSIntroduction[1] The applicant seeks leave to appeal from a decision of the Court of Appeal.1This decision ordered the return of her two children to France under the Care ofChildren Act 2004 (the Act).2 The applicant also seeks extensions of time to appealearlier procedural decisions.3 The proposed appeal would focus on the approach tos 106(1)(c)(ii) of the Act. That section provides a ground for refusing to make an orderfor return of a child where "there is a grave risk that the child's return—(i) wouldexpose the child to physical or psychological harm; or (ii) would otherwise place thechild in an intolerable situation ".Background[2] The background is set out in the judgment of the Court of Appeal on thesubstantive appeal.4 We need only note the following by way of factual narrative. Upuntil October 2020 the two children lived in France with the applicant, their(New Zealand born) mother, and their (French) father. By 2020 the parents'relationship had broken down. In October 2020, with the father's agreement, themother and the children came to New Zealand for a holiday. Their anticipated returnto France, in April 2021, was frustrated by Covid-19 documentation issues.[3] The father sought return of the children to France under the Convention on theCivil Aspects of International Child Abduction.5 An order was made by theFamily Court under the Act for the return of the children.6 The mother appealed fromthat decision to the High Court. She argued that the children would be at grave risk ofbeing placed in an intolerable situation if returned to France because:1 The names of the parties and the children have been anonymised.2 Roberts v Cresswell [2023] NZCA 36 (Brown, Goddard and Wylie JJ) [Substantive CA judgment].3 Roberts v Cresswell [2022] NZCA 625 (Brown and Goddard JJ) [CA leave judgment].4 Substantive CA judgment, above n 2, at [10]–[32].5 Convention on the Civil Aspects of International Child Abduction 1343 UNTS 89 (opened forsignature 25 October 1980, entered into force 1 December 1983).6 [Roberts] v [Cresswell] [2021] NZFC 12991 (Judge Hambleton).(a) they would be removed from their primary carer, the mother (at thatpoint the effect of a decision of the French court was to award the fatherprimary care of the children);(b) they would be adversely affected by a decline in their mother's mentalwell-being; and(c) if placed in the father's care in accordance with the orders of theFrench court at the time, he would be unavailable to care for them forextended periods of time due to his unique business commitments.[4] The High Court concluded the grave risk exception was met in the event thechildren were not in the care of their primary parent (the mother); and because of thelikelihood of the adverse effects on the mother's mental health and on her parenting,and the adverse consequences that would follow for the children.[5] The Court of Appeal granted leave to appeal from the High Court decision tothe father and provided for new evidence to be received.7 The mother unsuccessfullysought an adjournment of the hearing of the substantive appeal and the matterproceeded to a hearing.8[6] The appeal was subsequently allowed.9 In allowing the appeal, the Court didnot consider grounds (a) and (c), above, were made out. That was essentially because,by then, the father had obtained modifications of interim orders made by theFrench court to provide for shared care between the parents in the event the motherreturned to France.[7] On ground (b) the Court, adopting the approach outlined in LRR v COL,accepted the mother's assertions relating to family violence were of such a nature,detail and substance that they could not (in these proceedings) be discounted.10 That7 CA leave judgment, above n 3.8 The direction was made on 13 February 2023 by Brown and Goddard JJ. Reasons for the refusalto adjourn the hearing were given in the Substantive CA judgment, above n 2, at [32].9 Substantive CA judgment, above n 2.10 LRR v COL [2020] NZCA 209, [2020] 2 NZLR 610.said, the Court was not satisfied the risks met the "grave" threshold. The Courtconcluded that:[198] critically for present purposes, the evidence does not satisfy us thatthe risk of an intolerable situation for the children merits the qualitativedescription "grave". Even when the stressors on the mother were at theirhighest, while she was living with the father, she continued to be an effectiveand competent parent. The children were far from being in an intolerablesituation. If she returns to France, the mother will be less exposed to relevantpsychosocial stressors than she was before her departure. Her position will insome respects be better than it was before. As a result of the modified interimorders, she will have some financial support from the father. There is evidencethat she will also be entitled to certain welfare benefits.[199] The mother will have access to support from her own family, mostlyfrom a distance, though it seems likely that the maternal grandmother willcontinue to visit her daughter and grandchildren in France regularly, as shehas in the past. She came to France to support her daughter when Amelia andBrigitte were each born, and can be expected to provide similar support in thefuture.[200] The mother is also likely to have access to counselling and (if needed)mental health services. The mother expressed concern about availability ofcounselling in English in the area where she would be living, bearing in mindher limited fluency in French. We accept she will need to accessEnglish-language counselling. But the suggestion this will not be available inthe area in which she would be living seems speculative. And one optionwould be for her to continue counselling online with her existing counsellorin New Zealand.[201] We can also expect that the mother will be able to seek furtherprotective measures from the French Family Court, if these are required in thebest interests of the children. There is every reason to expect the father tocomply with such orders, given the risk to his standing and to his business ifhe fails to do so. This is not a case like LRR v COL where there was a historyof failure to comply with court orders, and where there was a significant riskthat such behaviour would continue.[202] We do not discount the real difficulties and stresses that a return toFrance will involve for the mother. She is likely to be significantly worse offthan she would be in New Zealand. But the risk that this will impair herparenting to an extent that gives rise to an intolerable situation for the childrenis, in our view, too speculative to be described as a grave risk.[8] The Court declined to impose conditions on the order for the return of thechildren.[9] The mother also raised the further ground that an order for the children's returnto France would be psychologically harmful or would place them in an intolerablesituation because they have been in New Zealand since October 2020 and are settledhere. The Court of Appeal found that this argument was misconceived and that therewas no reason to believe the children would not readapt to life in France.The proposed appealProcedural decisions[10] On the proposed appeal, the mother first seeks leave to challenge the earlierdecision of the Court of Appeal granting the father leave to appeal and allowing fornew evidence.11 In addition, she seeks to challenge the refusal of the Court of Appealto adjourn the substantive hearing to allow her more time to consider the modifiedorders made by the French court and their implications.12 Finally, there is a challengeto the decision of the Court of Appeal in the substantive decision to admit newevidence.13[11] An extension of time to apply for leave to appeal is necessary in relation to thetwo earlier decisions.14 We are satisfied the criteria for granting an extension of timeare not met.15 These aspects of the proposed appeal do not raise any questions ofgeneral or public importance and, in any event, have insufficient prospects of successto warrant an extension of time. We add that the way in which the further evidencecame before the Court of Appeal now has no significance in any practical sense givenit is accepted the grave risk exception must be evaluated on the factual position as atthe time of the appeal. For these reasons, the challenge to the decision in thesubstantive judgment to adduce further evidence would also have insufficientprospects of success for it to be in interests of justice to grant leave. Nor does it raisequestions of general or public importance.Challenge to the order for return[12] The other proposed grounds of appeal can be summarised in this way. First,there is a submission essentially that to dismiss the risk of harm required concrete11 CA leave judgment, above n 3. We assume, without deciding, that there is jurisdiction for theCourt to hear an appeal from this decision.12 See above at [5] and n 8.13 Substantive CA judgment, above n 2.14 Supreme Court Rules 2004, r 11(1)(b) and (2)(a).15 Rule 11(4).evidence of safeguards against that risk, not speculation; and second, that the risk tothe mother of abuse should have been assessed having regard to better-informedapproaches to domestic abuse. The first of these two grounds is buttressed by what isdescribed as a further ground focusing on consideration of the adequacy of systemicprotections and of the need for protective conditions on the order.[13] Leave to appeal can only be granted by this Court if it is in the interests ofjustice to do so, including where the proposed appeal concerns an issue of general orpublic importance, or where there is a risk of a miscarriage of justice.16 We do notconsider it is in the interests of justice to grant leave in this case. It may be that thisCourt may wish to consider the approach to s 106(1)(c)(ii) of the Act at some pointbut we do not see the present case as an appropriate case for that consideration. Weaccept the respondent's submission that the proposed grounds of appeal essentiallychallenge the application of the principles to these facts.[14] The high point of the applicant's proposed appeal is that the reforms reflectedin LRR v COL are difficult and there is a need in some respects for further expositionof the relevant standard. The only one of the issues raised in this case that, in our view,may raise a question of general or public importance is that relating to the need for awider understanding of domestic abuse, including recognition of the role of financialdisparity, inequality of arms and legal processes in such abuse.[15] Ultimately, however, this too is a challenge to the Court of Appeal's assessmentof the facts. The Court clearly appreciated the nature of the abuse alleged and thesuggestion, discussed in the expert evidence, that this contributed to mental healthissues for the mother. As the Court of Appeal said, "ultimately the Court's focus mustbe on the overall mental health of the mother, and the likely impact on her mentalhealth of a return to France. In that context, the [mother's] specific diagnosis assumes less importance".17 But the Court went on to note that "it was commonground before us that the circumstances will be materially different if the motherreturns with the children" noting, amongst other matters, the change in living16 Senior Courts Act 2016, s 74(2)(a) and (b).17 Substantive CA judgment, above n 2, at [153].arrangements.18 We add that the applicant's counsel endorsed the approach taken inLRR v COL to proof,19 and the Court of Appeal said that LRR v COL should be givenits full effect.20 Nothing raised by the applicant calls into question the way in whichLRR v COL was applied to the facts.[16] Nor do we see any appearance of a miscarriage of justice in theCourt of Appeal's factual assessment. The Court focused on the likely effect on thechildren. And, as we have noted, by the time the matter came before theCourt of Appeal, the factual position had changed materially from that considered bythe High Court.Result[17] The applications for an extension of time to apply for leave to appealRoberts v Cresswell [2022] NZCA 625 and the Court of Appeal's decision decliningthe application to adjourn the substantive hearing are dismissed.[18] The application for leave to appeal (Roberts v Cresswell [2023] NZCA 36) isdismissed. As was the case in the Court of Appeal, we make no order as to costs.Solicitors:Parry Field Lawyers, Christchurch for Applicant18 At [195].19 At [179].20 At [192].