30 Nov 2020
The appeal, as reformulated by the amended notice of appeal dated 6 November 2020, sets out arguable grounds that are not clearly untenable; delays were not undue given COVID-19 and the appellant's circumstances and he has paid ordered security for costs; therefore the strike out application must be dismissed but the appeal must be confined to the amended grounds and progressed promptly to hearing.
4 May 2020
Leave was refused because the Court of Appeal lawfully applied established Hague Convention principles, legitimately considered material changes in circumstances (including the 2017 school incident) and fresh expert evidence when determining the s106 exceptions and exercising its discretion, and there was no issue of general or public importance nor real risk of miscarriage of justice warranting Supreme Court intervention.
5 Dec 2019
Further evidence applications will be determined at the substantive hearing of the appeal because issues of freshness and relevance require argument; the Court may receive evidence under r45/s145(2) and s12A displaces s25 for Family Court proceedings; a production order for the respondent's Australian records is necessary and justified and will be granted, subject to reciprocal production by the appellant, with specified compliance dates; no costs order made.
8 Nov 2018
The High Court allowed the father's appeal, finding the Family Court erred in concluding the mother had discharged the onus under s106(1)(c) to establish a grave risk or that return would place the child in an intolerable situation; factual context (separation of parents, availability of Australian Family Court processes, likely care arrangements and potential assistance) did not meet the high threshold for refusal of return.
19 Aug 2015
S3 does not import a statutory precondition of a 'sufficient connection' to New Zealand; s10's social worker report requirement does not apply where a natural parent is an applicant and independent expert reports may supplement absent social work material; the court must be satisfied on s11 criteria and, on the evidence including Dr Calvert's report, s11 was met so the appeal was allowed subject to an updating expert report before final orders issue.
30 May 2012
The Philippine adoption fell within the Hague Convention's scope but did not obtain the required approvals or certification from the relevant Central Authorities; under the Adoption (Intercountry) Act 1997 (which gives the Convention force in New Zealand) and s 17(5) of the Adoption Act 1955 such an intercountry adoption cannot be recognised in New Zealand, so the Court cannot declare the plaintiff to be the child's mother or guardian and the claim must be dismissed.
4 Feb 2009
Leave to appeal was refused because the applicant's grounds did not raise issues of general or public importance nor an arguable risk of substantial miscarriage of justice; the Court of Appeal judge's refusal to grant a stay was a view on the weight of competing considerations and was not shown to be wrong.
24 Nov 2008
Court held as a matter of law that (a) if the Australian Family Court finds the parents were de facto partners at the child's birth the father would be a guardian under COCA and thus possess Article 5(a) rights of custody and the removal would be wrongful under Article 3; (b) if the Family Court finds they were not de facto partners the mother would be sole guardian and the father's inchoate/non‑guardian rights would not amount to Article 5(a) rights of custody; the High Court declined to determine the factual de facto issue and issued the Article 15 legal determination accordingly.
5 Jun 2007
Leave to appeal refused because no question of principle or sufficient error on matters appropriate for a second appeal was shown; lower courts acted within discretion and established law: respondent retained custody rights and was exercising them, consent and acquiescence were not established by clear and cogent evidence, and the high threshold for s106(1)(c) grave risk was not met given available undertakings and likely assistance in Australia.
29 Aug 2006
The Court of Appeal adopts the Balcombe 'shades of grey' approach: where a child objects and is of sufficient age and maturity the court must assess what weight to give those views and then exercise a residual statutory discretion which gives significant weight to the Hague Convention's policy favouring return; the Care of Children Act does not displace that statutory framework and general welfare considerations are only relevant in a limited, pragmatic way (eg interim practicalities); on the facts the residual discretion was correctly exercised and the child must be returned to England.