G v G [2022] NZCA 67

G v G [2022] NZCA 67 [21 March 2022]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 SEE https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA30/2022[2022] NZCA 67BETWEEN GApplicantAND GRespondentCourt: Gilbert and Goddard JJCounsel: Applicant in personM Casey QC and K E Pearce for RespondentA G Gray for ChildrenJudgment:(On the papers)21 March 2022 at 2.00 pmJUDGMENT OF THE COURTA The application for leave to appeal to this Court is declined.B The applicant must pay costs to the respondent for a standard applicationon a band A basis, with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)Application for leave to bring a second appeal to this Court[1] Mr and Ms G have two children: "S" aged seven years, and "M" aged six years.In April 2021 Mr and Ms G separated. On 17 May 2021 Ms G travelled with thechildren from Australia, where she and Mr G and the children had been living, toWellington. Ms G advised Mr G that she did not intend to return to Australia with thechildren.[2] Mr G applied to the Family Court for an order for return of the children toAustralia under s 105 of the Care of Children Act 2004 (the Act) and theHague Convention on the Civil Aspects of International Child Abduction 1980(the Child Abduction Convention). The Family Court made an order for the return ofthe children to Australia.1 Ms G appealed to the High Court. The appeal wasdismissed, and the case was remitted back to the Family Court for arrangements to bemade in relation to the return of the children to Australia.2[3] Ms G now applies for leave to appeal to this Court against the High Courtdecision.[4] We do not consider that leave to appeal should be granted in this case.We emphasise that the decisions of the courts below do not determine who shouldhave responsibility for care of the children, or contact with the children. Rather, theyare concerned with which court should determine those matters. The finding made inthe courts below that the children should be returned to Australia means that it is forthe Australian courts to determine the best care arrangements for the childrenfollowing the separation of their parents. That is the context in which any concernsthat either parent may wish to raise in relation to the care provided by the other can befully explored and taken into account.1 Central Authority v [G] [2021] NZFC 8790 [Family Court decision].2 G v G [2021] NZHC 3318 at [40] [High Court decision].[5] None of the matters raised by Ms G provides a seriously arguable basis fordeclining to return the children to Australia, to enable the Australian courts todetermine appropriate care arrangements. It would be inconsistent with the Act andthe Child Abduction Convention, and contrary to the best interests of the children, todelay their return further by granting leave to appeal in these circumstances.Principles governing leave to appeal to this Court[6] The Act provides for applications for the return of children to be made to theFamily Court.3 There is a right of appeal to the High Court.4 The decision of theHigh Court on an appeal from the Family Court is final, subject to s 145 of the Act,which provides for an appeal to this Court with the leave of this Court.5[7] The test for granting leave to bring a second appeal to this Court is wellestablished:6(a) The appeal must raise some question of law or fact capable of bona fideand serious argument in a case involving some interest, public orprivate, of sufficient importance to outweigh the cost and delay of thefurther appeal.(b) In the end, the guiding principle must be the requirements of justice.(c) Upon a second appeal, this Court is not engaged in the correction oferror. Its primary function is to clarify the law and to determine whetherit has been properly construed and applied by the court below.[8] The Act emphasises the importance of prompt determination of returnapplications. Section 107 of the Act requires courts dealing with return applicationsto give priority to the proceedings in order to ensure that they are dealt with speedily.The Act reflects an expectation that such applications should normally be determined3 Care of Children Act 2004, s 105.4 Section 143.5 Sections 144 and 145(1)(b).6 Waller v Hider [1998] 1 NZLR 412 (CA); L v K [2010] NZCA 618, (2010) 28 FRNZ 692 at [4].within six weeks.7 Those requirements reflect the object of the Child AbductionConvention: to secure the prompt return of children wrongfully removed to or retainedin a Contracting State.8 The Convention provides that judicial authorities ofContracting States should act expeditiously in proceedings for the return of children.9[9] The emphasis that the Act and the Child Abduction Convention place onprompt determination of return proceedings underscores the need for an applicant forleave to bring a second appeal to identify a seriously arguable issue of sufficientimportance to justify the further delay inherent in such an appeal.The issues before the courts below[10] The matters that an applicant for a return order must establish are set out ins 105 of the Act. The only limb of s 105 that was in issue in the courts below waswhether the children were habitually resident in Australia in May 2021, when Ms Gbrought them from Australia to New Zealand. The courts below found that thechildren were habitually resident in Australia at that time.10[11] If the requirements set out in s 105 are satisfied, a New Zealand court mustmake an order for the return of the child to that child's State of habitual residenceunless one of the exceptions in s 106 applies.11 The limbs of s 106 that were in issuein the courts below in this case were the "grave risk" and "child objects" exceptionsset out in s 106(1)(c) and (d):(1) If an application under section 105(1) is made to a court in relation tothe removal of a child from a Contracting State to New Zealand, thecourt may refuse to make an order under section 105(2) for the returnof the child if any person who opposes the making of the orderestablishes to the satisfaction of the court—7 Care of Children Act, s 107(2).8 Hague Convention on the Civil Aspects of International Child Abduction 1980 (Child AbductionConvention), art 1.9 Article 11.10 Family Court decision, above n 1, at [51]–[57]; and High Court decision, above n 2.11 LRR v COL [2020] NZCA 209, [2020] 2 NZLR 610 at [42].(c) that there is a grave risk that the child's return—(i) would expose the child to physical or psychologicalharm; or(ii) would otherwise place the child in an intolerablesituation; or(d) that the child objects to being returned and has attained an ageand degree of maturity at which it is appropriate, in additionto taking them into account in accordance with section6(2)(b), also to give weight to the child's views; or[12] The courts below were not satisfied that either of these exceptions was madeout on the facts.12The points that Ms G proposes to argue on appeal[13] Ms G wishes to argue on appeal that the Family Court and High Court erred infinding that:(a) The children were habitually resident in Australia at the time shebrought them to New Zealand in May 2021.(b) They were not satisfied that there was a grave risk that the return of thechildren would expose them to physical or psychological harm, orotherwise place them in an intolerable situation.(c) The children had not attained an age and degree of maturity at which itwas appropriate to give substantial weight to their desire to remain inNew Zealand.[14] Ms G says that these errors were contributed to by the refusal of the courtsbelow to order a psychologist's report under s 133 of the Act, and by the High Court'sdecision not to admit further evidence on appeal.1312 Family Court decision, above n 1, at [62]–[82] and [111]–[115]; and High Court decision, aboven 2, at [36]–[37].13 G v G [2021] NZHC 3310 [High Court evidence decision].[15] Ms G also wishes to pursue new arguments on appeal that were not raised inthe courts below:(a) She says she did not have the necessary "mens rea" for abduction.When she and Mr G separated, Mr G required her to move out of theirhome. By compelling Ms G to leave their home, Mr G placed her andthe children at risk of harm and she did "the only reasonable thingavailable to her" which was to return to New Zealand.(b) Ms G makes new allegations of abuse against Mr G. She claims thatMr G exposed the children to alcohol and drugs, and neglected to blockonline pornography on devices he gave the children, which resulted inS being exposed to online pornography.(c) Ms G makes new allegations about Mr G's character based onallegations of improper trading practices by a company in which he hada senior role.[16] We consider below whether any of these issues, separately or cumulatively, areseriously arguable and of sufficient importance to justify the grant of leave to appeal.DiscussionThe appeal does not raise any seriously arguable questions of law[17] The law in relation to applications for return of children under the Act and theChild Abduction Convention has been considered by this Court on a number ofoccasions. A full court of this Court considered the test for habitual residence inPunter v Secretary for Justice.14 The objectives of the Act and the Child AbductionConvention, and the "grave risk" defence, were recently considered in some detail bythis Court in LRR v COL.15 The courts below referred to these decisions, and appliedthe approaches set out in them.14 Punter v Secretary for Justice [2007] 1 NZLR 40 (CA), and see also Punter v Secretary for Justice[2004] 2 NZLR 28 (CA).15 LRR v COL, above n 11.[18] Ms G's application for leave to appeal and submissions do not identify anyquestion of law that requires consideration by this Court. Nor does she identify anyrespect in which the law needs to be clarified. Rather, the arguments she wishes topursue relate to the way in which the courts below assessed the facts in this case, andapplied the law to those facts.Habitual residence[19] Ms G proposes to argue that the children were not habitually resident inAustralia in May 2021 by reference to the length of time they had lived in Australia,the fact that that time was split between two States, and the resulting lack of substantialconnection to either of those places of residence. None of these issues raises anyseriously arguable question of law, as noted above. Nor do they raise any question offact capable of serious argument.[20] The Family Court carefully considered the question of whether the childrenwere habitually resident in Australia in May 2021. Judge Montague considered,among other matters, the overall length of their stay in Australia and the strength ofthe children's ties to Australia.16 It appears Ms G did not challenge the Family Court'sfindings on habitual residence in her appeal to the High Court. The arguments thatMs G wishes to pursue in this Court relate to the weight given to the various factorsrelevant to an assessment of habitual residence, as she acknowledges in her applicationfor leave to appeal. They do not raise questions of wider importance. It is not thepurpose of a second appeal to revisit a fact-specific assessment of this kind in aparticular case, especially where that assessment was not challenged on a first appeal.[21] Ms G also wishes to argue that art 20 of the Child Abduction Convention "givesspecific measurement for the time required to fulfill a definition of residency after afamily separation across an international border, that being one year one month".Article 20 of the Child Abduction Convention is not concerned with the question ofresidence, and does not prescribe any time period for the purpose of assessingresidence. Article 12 provides for a different test to be applied to an application forreturn if the application is made more than one year after the removal of the child. But16 Family Court decision, above n 1, at [51].in this case, Mr G's application was made within one month of the children's arrivalin New Zealand. So Article 12 is not relevant. Nor is it seriously arguable that theone year period referred to in Article 12 creates a necessary prerequisite for a findingof habitual residence, which must be in a single location. This proposed ground ofappeal is not seriously arguable.Grave risk to the children[22] An order for the return of a child will not be made if the Court is satisfied thatthere is a grave risk that the child's return would expose the child to physical orpsychological harm, or would otherwise place the child in an intolerable situation.17[23] Ms G has not identified any seriously arguable issue in relation to the decisionsby the Family Court and the High Court not to seek a psychological report under s 133of the Act. Her argument that such a report should have been obtained is case specific,and does not involve any wider public interest. The Judges below were right to weighthe importance of prompt resolution of return applications against the likely benefit ofadditional information from a psychological report. Their decisions not to obtain sucha report do not give rise to any issue that is properly arguable on a second appeal.[24] We note that the lawyer for the children does not support a s 133 report. She isconcerned that these young children have already been spoken to on several occasionsby professionals about their views. She expresses concern that requiring the childrento go through a psychological assessment would not be in their best interest and wouldunacceptably prolong and delay resolution of these proceedings.[25] Nor has Ms G identified any seriously arguable issue in relation to the decisionof the High Court not to admit further evidence on appeal.18 Churchman J carefullyreviewed the proposed evidence, and declined leave to admit it on the basis that itwould not be appropriate for the High Court to undertake an evaluation of factualmaterial that was not before the Family Court.19 The Judge also considered that noneof the material that Ms G wished to present as further evidence was of a quality that17 Care of Children Act, s 106(1)(c); and LRR v COL, above n 11, at [96].18 High Court evidence decision, above n 13.19 At [26].would justify its admission.20 There is no appearance of error in that decision. Nor dowe consider that any of the proposed evidence, as described in the High Courtadmissibility decision, would provide material support for an argument that return ofthe children would give rise to a grave risk to their safety, or of an otherwise intolerablesituation.[26] The arguments that Ms G wishes to present in relation to risk to the childrenare very case-specific. She seeks to relitigate before this Court the matters that wereconsidered in some detail in the Family Court, and on appeal in the High Court. Ms Gdoes not identify any arguable error of law by the courts below. Nor has she identifiedany question of fact capable of serious argument that is of sufficient importance tooutweigh the cost and delay of a further appeal (a factor of particular importance inchild abduction cases, as noted above).[27] We add that even taken at face value the allegations made by Ms G in the courtsbelow, and the new allegations advanced for the first time before this Court, would notestablish a grave risk of harm of the kind that could justify declining a return order.As already emphasised, the making of a return order does not mean that the childrenwill be placed in the care of their father. Rather, it means that the Australian courtswill determine the future care of the children. That is the appropriate forum forinvestigation and determination of the criticisms that Ms G advances in relation to thecare provided by Mr G. It is not seriously arguable that the return of the children toAustralia to enable that to take place creates the sort of grave risk with which the Actand the Child Abduction Convention are concerned.The views of the children[28] Similarly, the arguments that Ms G wishes to advance in relation to theapproach taken in the courts below to the views of the children turn on the facts of thisparticular case. They do not raise any seriously arguable issues of law. Nor do theyraise any seriously arguable issues of fact, let alone issues of sufficient importance tojustify the delay inherent in a second appeal.20 At [26].Allegations about Mr G's character[29] As noted above, Ms G's submissions in support of her application for leave toappeal make new allegations about Mr G's character based on allegations of impropertrading practices by a company in which he had a senior role. She suggests there is apossibility that Mr G will face prosecution in New Zealand in connection with thesematters. She says that this casts the question of habitual residence "in fresh light" andis relevant to the risk of harm to the children.[30] Even if these allegations were substantiated — and we emphasise that there isno evidence before the courts on those matters — that would have no bearing on thequestion of the habitual residence of the children. Nor would it support Ms G'sarguments in relation to grave risk. These allegations are not relevant to the returnapplication or to the application for leave to appeal to this Court.Abduction of children[31] Finally, Ms G wishes to argue before this Court that there was no abduction ofthe children from Australia to New Zealand, because she did not have the relevant"mens rea". She says that Mr G required her to leave their family home and that inthose circumstances, without family or means of support in Australia, she did the onlyreasonable thing available to her by returning to New Zealand.[32] These arguments were not advanced in the courts below. Leave will notnormally be granted to pursue, on a second appeal before this Court, issues that werenot considered in the courts below. In any event, these points are not seriouslyarguable. There is no separate mens rea or intention element that needs to beconsidered when the Court considers whether there has been a relevant abduction.Rather, the question is whether the children have been removed from their place ofhabitual residence without the consent of the applicant parent, in a manner inconsistentwith that parent's rights of custody. That is plainly the case here. Nor is it seriouslyarguable that there was no abduction on the basis of the allegation that she wasrequired to leave the family residence, and it was reasonable for her to return toNew Zealand in those circumstances: that is not relevant to the test set out in s 105 ofthe Act.Summary[33] In summary, none of the arguments advanced by Ms G suggests that the lawrequires clarification. None is seriously arguable. None is of sufficient importance tojustify a second appeal, having regard to the delay that such an appeal would cause.To the contrary, the further delay involved in a second appeal would be inconsistentwith the objectives of the Act and the Child Abduction Convention.Result[34] The application for leave to appeal to this Court is declined.[35] The applicant must pay costs to the respondent for a standard application on aband A basis, with usual disbursements.Solicitors:Reids Family Law, Lower Hutt for RespondentBuchanan Gray Lawyers, Wellington for Children