MCDONALD v PARISH [2023] NZCA 8

MCDONALD v PARISH [2023] NZCA 8 [10 February 2023]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OFTHE FAMILY COURT ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA688/2022[2023] NZCA 8BETWEEN JAMES MCDONALDApplicantAND OLIVIA PARISHRespondentCourt: Brown and Goddard JJCounsel: R J Harte for ApplicantL F Soljan for RespondentJudgment:(On the papers)10 February 2023 at 11.30 amJUDGMENT OF THE COURTA The application for leave to appeal 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)Background[1] Ms Parish and Mr McDonald have three children: Benjamin, who is 15 yearsold, Amelia, who is 12 years old, and Noah, who is 7 years old. The parents areoriginally from New Zealand, but lived for an extended period in England. All threechildren were born in England. In 2017 the family moved to France. The parentsseparated in mid-2021.[2] In October 2021 the mother brought the children to New Zealand, with thefather's consent, for a holiday and to spend time with family. They were due to returnto France in early 2022, but did not do so. The children are currently living with theirmother in Kerikeri, next door to their maternal grandmother.[3] In February 2022 the father applied for the return of the children to Franceunder Part 4 of the Care of Children Act 2004 (the Act). The Act gives effect inNew Zealand to the Hague Convention on Civil Aspects of International ChildAbduction 1980 (the Convention).1[4] The mother opposed the application on two grounds:(a) In relation to Benjamin and Amelia, that they object to returning toFrance.2(b) In relation to each of the three children, that there is a grave risk thatreturn to France would place the child in an intolerable situation.3Family Court judgment[5] The Family Court received extensive evidence from the parties and a numberof other witnesses, and a report from a psychologist who met with each of the childrenand the parents. The children were represented by Ms Armstrong, who was appointedby the Court as lawyer for the children. Ms Armstrong met with each of the childrenand conveyed their views to the Court.[6] Judge King met with Benjamin and Amelia, at their request.1 Hague Convention on the Civil Aspects of International Child Abduction 1343 UNTS 89 (openedfor signature 25 October 1988, entered into force 1 December 1983).2 Care of Children Act, s 106(1)(d).3 Section 106(1)(c)(ii).[7] The Judge declined to make an order for Benjamin to return to France.4She found that his objection to return should be given full weight and that a return toFrance would place him at grave risk of an intolerable situation.5[8] The Judge found that Amelia objected to returning to France, and that herobjection should be given full weight.6 The Judge did not consider that Amelia orNoah would be at grave risk of being placed in an intolerable situation upon theirreturn provided their return was together, to protect the importance of the siblingrelationship.7[9] In the exercise of the discretion conferred by the Act, the Judge considered thatan order should be made for Amelia's return to France together with her youngerbrother Noah.8High Court judgment[10] The mother appealed to the High Court against the order for the return toFrance of Amelia and Noah. The lawyer for the children supported the appeal.There was no challenge by the father to the decision in relation to Benjamin. The HighCourt received further evidence, including a further report from the psychologistfollowing further interviews with the children and the parents.[11] The appeal was successful. Justice Edwards found that there was a grave riskthat ordering Amelia's return would place her in an intolerable situation, having regardto her objection to returning to France and uncertainties in relation to livingarrangements in France.9 The position in relation to Noah was less clear. But theJudge was ultimately satisfied that there was a grave risk that ordering Noah's returnto France with, or without, Amelia would place him in an intolerable situation.104 [McDonald] v [Parish] [2022] NZFC 6384 [Family Court judgment].5 At [106].6 At [56].7 At [107].8 At [108].9 Parish v McDonald [2022] NZHC 3022 [High Court judgment] at [73]–[76].10 At [80].[12] The Judge considered that the conclusions she had reached regarding the graverisk of an intolerable situation compelled the exercise of the discretion in favour of thechildren remaining in New Zealand with their mother.11 The Judge also consideredthat it was in the best interests of both children that they remain in New Zealand.12She said:[82] In reaching that conclusion, I have taken into account the generalpurpose of the Convention which is to deter parents doing exactly what themother has done in this situation. That is a very important and significantpurpose. Nevertheless, each case turns on its own facts. In this case, thepsychological and emotional harm that may result from a relatively lengthyseparation from their mother and separation from their siblings, and theuncertainties inherent in the arrangements back in France once returned,outweigh the general deterrence objectives of the Convention.[83] The decision is not reached lightly. I agree with counsel for the fatherthat it is imperative that all children have a relationship with their father whilepermanent custody and location issues are sorted out. That relationship, atleast with Benjamin and Amelia, has deteriorated as a result of the prospect ofhaving to return to France. There is reason to believe that it will deteriorateeven further if the children are ordered to return to France. The maintenanceof a relationship between the father and children while final custody andlocation arrangements are made also weighs against an order to return in thiscase.[84] Finally, I note for completeness that even if I had found the thresholdof the grave risk defence was not made out for Amelia, those sameconsiderations would nevertheless lead me to decline to order her return inany event.Leave to appeal to this Court: relevant principles[13] The father seeks leave to bring a further appeal to this Court under s 145 of theAct, which as relevant provides:145 Appeal to Court of Appeal(1) An appeal lies to the Court of Appeal from an order or decision of theHigh Court under this Act, but—(b) if the order or decision was made on appeal from theFamily Court or the District Court, an appeal lies only withthe leave of the Court of Appeal.11 At [81].12 At [81].[14] In L v K this Court endorsed the following principles in relation to secondappeals under the Act:13(a) The appeal must raise a question of law or fact capable of bona fide andserious argument involving an interest of sufficient importance tooutweigh the cost and delay of the further appeal.(b) The guiding principle is the requirements of justice.(c) On a second appeal this Court is not engaged in general correction oferror, but has the function of clarifying the law.[15] Any error of law must be material "in the sense that it may have led [theHigh Court Judge] to reach a different conclusion".14[16] The delay that flows from a grant of leave needs to be considered in light ofthe principle in s 4(2)(a)(i) of the Act that decisions affecting children should be madeand implemented within a timeframe appropriate to the child's sense of time.15The importance of prompt determination of Convention applications is underscoredby s 107 of the Act, which requires a court hearing such an application to give priorityto the proceedings in order to ensure that they are dealt with speedily. That reflectsthe requirement for prompt determination in the Convention itself.The application for leave to appealThe father's grounds for seeking leave to appeal[17] Mr Harte, counsel for the father, submits that the proposed appeal raises anumber of issues of law of wider significance.[18] The first issue identified by Mr Harte concerns the evidence required toestablish relevant risks, and in particular the mother's mental health issues.He submits that no medical evidence was provided by the mother to support the13 L v K [2010] NZCA 618, (2010) 28 FRNZ 692 at [4].14 At [17].15 At [24].findings made by the High Court that she suffered genuine and long-standing mentalhealth issues of depression and anxiety. He submits that "[a] clear statement isrequired to ensure that findings of fact on mental health issues are not made onpersonal statements of the abducting parent without medical support."[19] Second, he submits that a consideration of the reasonableness of the mother'srefusal to return was required at the outset of the risk assessment. A taking parent'srefusal to return must be scrutinized closely before the Court decides whether to applythe principle that an abducting primary carer cannot create a defence by relying oncircumstances that flow from his or her refusal to return with the abducted child.16[20] Third, he says that the Judge erred by failing to assess grave risk for theyounger child first, before considering the position of the older child. He submits thatthe correct approach is to consider the younger child first, in reliance on Zaffino vZaffino17 and this Court's decision in White v Northumberland.18[21] Fourth, he submits that the assessment of risk was made without reference toevidence about mitigation proposals that could address those risks, contrary to theapproach required by this Court's decision in LRR v COL.19[22] Fifth, he says that the assessment of risk was made without sufficient weightingof the individual risks identified.[23] Overall, Mr Harte submits that the Judge's approach was inconsistent withLRR v COL.[24] Mr Harte adds that an appeal would provide an opportunity for this Court toconsider the recent decision of the Canadian Supreme Court in F v N.2016 C v C (Abduction: Rights of Custody [1989] 1 WLR 654 (CA).17 Zaffino v Zaffino [2005] EWCA Civ 1012 at [21].18 White v Northumberland [2006] 26 FRNZ 189.19 LRR v COL [2020] NZCA 209, [2020] 2 NZLR 610.20 F v N [2022] SCC 51.The mother's opposition to leave to bring a second appeal[25] The mother opposes the application for leave to bring a second appeal.Ms Soljan, counsel for the mother, submits that the appeal raises no issues of generalimportance or significance that would justify a second appeal. Rather, the challengesrelate to the essentially factual finding that the separation of the children from theirmother, which would be a consequence of an order for return, would contribute to thechildren being at grave risk of being placed in an intolerable situation if returned toFrance. The Judge made no errors of principle.[26] Ms Soljan submits that the High Court had the benefit of extensive evidencefrom the parties, other witnesses and a child psychologist. Leave should not be grantedto enable the father to challenge factual findings made by the High Court.[27] Ms Soljan says that there are no absolute rules about disregardingcircumstances flowing from a carer's refusal to return with the abducted child. To thecontrary, the authorities establish that what is required is an individualised factualassessment. More recent judgments highlight the child-focussed nature of the factualassessment and the need for greater recognition of the multi-faceted reasons why anabducting parent may be unable or unwilling to return to the country of habitualresidence.21[28] Ms Soljan submits that this issue is moot in any event as the Judge determinedon the facts that the mother had not unreasonably created the risk on which she reliedto oppose the application for return.22 And the Judge's finding about the potentialintolerable situation was not founded solely on the mother's decision to remain inNew Zealand.[29] Ms Soljan says that the Judge did not suggest that LRR v COL had removedthe need to consider policy concerns about an abducting party creating thecircumstances on which they then relied to create a grave risk defence. Rather, the21 See for example Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC144; and Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619.22 High Court judgment, above n 9, at [58]–[59].Judge found that on the facts of this case the policy concerns were not relevant becausethe mother had not created the potentially intolerable situation.[30] Ms Soljan says that the argument that the High Court was obliged to assess theavailability of the grave risk defence in relation to the younger child first, and then theolder child, is not supported by authority. Nor would it have changed the outcome.It is not seriously arguable.[31] Ms Soljan submits that F v N is not directly relevant to the issues in this case,as it was not a Convention case. Rather, it concerned the application of domesticCanadian legislation. In any event, she says, it does not represent a shift in anyapplicable legal principles: there is no material difference in approach between F v Nand LRR v COL. As the Canadian Supreme Court emphasised, assessment of harm toa child is highly individualised and fact-specific.23[32] The mother says that the effect of granting leave for a second appeal would beto delay the resolution of arrangements for this family's future, and in particular thefuture care and contact for the children. The children have been under a cloud ofuncertainty for over a year already.Discussion[33] We have concluded that the proposed appeal does not raise any question of lawor fact capable of serious argument that involves an interest of sufficient importanceto outweigh the delay involved in a further appeal. Our reasons are set out brieflybelow.[34] The Judge's assessment as to whether the children would be exposed to a graverisk of an intolerable situation if they returned to France was, appropriately, intenselyfact-specific. It is not seriously arguable that the Judge's factual findings were madewithout a proper evidential basis.23 F v N, above n 20, at [72], [75], [77]–[80].[35] Nor is it seriously arguable that the Courts below were required to make apreliminary finding in relation to the reasonableness of the mother's decision not toreturn to France, before assessing the grave risk defence. The Judge carefully analysedthe relevant facts, noting that this is not a case where the mother is unable to return.The Judge expressly recorded that a parent should not be allowed to create a situationthat is potentially harmful to the child and then rely on that situation to claim a graverisk.24 But the Judge accepted that there were genuine reasons for the mother'sdecision to remain in New Zealand.25 The genuineness of a stated intention not toreturn to the country of habitual residence will in some cases be an important issue forthe court to assess. The reasonableness of the decision may inform that assessment.But ultimately the inquiry is focussed on the risk to the child if an order for return ismade. If the court is satisfied that there is a real prospect that the child's primary carerwill not return to the country of habitual residence even if the child is returned, thatfactor needs to be weighed together with all other factors in determining whetherreturn will give rise to a grave risk of an intolerable situation for the child. That wasthe approach adopted by the Judge, and it is not seriously arguable that she erred indoing so.[36] It is not seriously arguable that the law requires the court to assess risk to thechildren concerned in a particular age order. The appropriate approach will depend onthe facts of each case, and the issues that are raised. No particular order of analysis ismandated by the Convention, the Act or the authorities.[37] In the present case, it was sensible to begin by considering Benjamin'sobjection to return to France, and determining whether an order should be made forhis return notwithstanding that objection. The Family Court Judge considered that hisviews should be given full weight.26 In those circumstances, deciding not to make anorder for his return before moving on to consider the position of the younger childrenwas a reasonable approach. Indeed it was not challenged before the High Court.24 High Court judgment, above n 9 at [57] citing The Hague Conference on Private InternationalLaw 1980 Child Abduction Convention: Guide to Good Practice Part VI - Article 13(1)(b) (HCCHPermanent Bureau, Netherlands, 2020) at [72].25 At [58].26 Family Court judgment, above n 4, at [39].[38] Similarly, Amelia had expressed a clear preference to remain in New Zealand.The Family Court Judge considered that full weight should be given to her objectionto return.27 That finding was not challenged on appeal. By the time of the High Courthearing, that objection had been expressed even more firmly. Amelia's objection toreturn to France meant that return was not mandated by the Convention. The Courtsbelow were required to consider whether she should be required to return to Francedespite her objection, having regard to all other relevant factors. It was open to theJudge to find that an order for return should not be made in those circumstances,without going on to consider grave risk. But Amelia's objection also inevitablyinformed the assessment of whether return would give rise to a grave risk of anintolerable situation for Amelia. It was open to the Judge to consider whether returnof Amelia would give rise to a grave risk of an intolerable situation for her, andwhether an order for her return to France should be made in light of that assessment,before addressing the position of the youngest child, Noah. Neither principle norauthority required the exercise of discretion in relation to Amelia to be deferred untila view had been reached in relation to Noah.[39] In short, the Judge carefully reviewed the evidence before her, includingevidence that was not available in the Family Court, and adopted an approach tailoredto the particular circumstances of this case and the issues that it raised. It is notseriously arguable that she was wrong to do so.[40] The other criticisms that are made of the Judge's assessment of risk do notidentify any issue of broader public or general significance. It is not the role of thisCourt, on a second appeal, to re-evaluate the nature and extent of particular risks, orthe weight given to them, in a particular case.[41] We accept Ms Soljan's submission that the recent decision of the CanadianSupreme Court in F v N is not directly relevant. Nothing in that decision suggests thatthis Court needs to reconsider the law in relation to determination of Convention casesby New Zealand courts.27 At [56].[42] Standing back from the detail of the arguments raised by the father, we do notconsider that there is any real prospect that the appeal could succeed on the basis ofthe arguments he seeks to advance. There is no challenge to the decision by theFamily Court that an order should not be made for the return of Benjamin to France.In light of the evidence before the High Court, and Amelia's clearly articulated andreasoned objection to returning to France, a challenge to the High Court decision thatno order should be made for her return has no realistic prospect of success.Against that backdrop, there is no realistic prospect of arguing that making an orderfor the return of Noah to France, without his brother and sister and (probably) withouthis mother, who has been his primary carer all his life, would not give rise to a graverisk of an intolerable situation for him. It follows that an order should not be made forhis return.28[43] It is in the interests of all three children that there be no further delay indetermining this matter. Their interest in achieving finality, and the interests of justicemore generally, favour declining leave for a further appeal. The parents and thechildren can now put this litigation behind them. Both the mother and the father areloving, capable parents who are actively involved in the lives of their children. We areconfident that they can work together, supported by the children's grandparents, tocare for the children with a clear focus on their welfare and their best interests.Result[44] The application for leave to appeal is declined.[45] The applicant must pay costs to the respondent for a standard application on aband A basis, with usual disbursements.Solicitors:RH Lawyers Limited, Whangārei for Appellant28 LRR v COL, above n 19 at [96], [100].