- An application by the father of a daughter now aged eight years for an
order for her return to him in Arizona was made under the Guardianship
Amendment Act 1991, s.12. The father's contention is that the mother removed
the child from another Convention State, namely the United States, in breach
of his rights of custody in respect of the child. The application was
dismissed for want of jurisdiction by Judge Whitehead in the North Shore
District Court. The Judge expressed regret that his decision appeared to
defeat the child's rights under the Convention, but he regarded the terms of
the New Zealand legislation as requiring that result.
- The child had arrived with the mother in New Zealand on 25 September 1993.
The District Court Judge's decision was delivered on 27 April 1994. There was
an appeal to the High Court and by an order sealed on 21 September 1994
Fisher J ordered by consent that the appeal be removed into this Court.
The reason for the removal was that the District Court Judge had adopted the
same interpretation as was subsequently upheld by Gallen J in F v T
[1994] NZFLR 565, where the High Court Judge had dismissed an appeal from
a decision of Judge Inglis reported in 11 FRNZ 378. It may be noted that
Gallen J expressed more doubt about part of the question than may have been
entertained by Judge Inglis.
- The 1991 Amendment Act was passed as stated in the long title 'To
implement The Hague Convention on the Civil Aspects of International Child
Abduction' and the Convention is scheduled to the Act, although the wording in
the body of the Act differs in some respects from that of the Convention. A
Bill at present before the House of Representatives proposes a relevant
amendment which may be enacted in the future, but the Court is now of course
concerned only with the legislation as it stands at present.
- The parties separated in Arizona, having moved there with the daughter,
after their divorce, by mutual consent. In the Lake County Superior Court,
State of Indiana, an order had been made on 29 March 1990; it was subsequently
registered in Arizona and remains definitive of the relevant rights of the
parties. The material clauses read:
1. The wife shall be awarded the sole care and custody of the
parties' minor child, [name omitted], born 2 November 1986.
2. The husband shall have reasonable rights of visitation
with the said child to include every other week-end, alternating holidays and
summer vacation.
It is the substance of those orders rather than the form and
wording in which they are expressed which is important. The fact that the word
'sole' is used in defining the rights of the wife and the fact that the word
'visitation' is used in defining the rights of the husband are not
determinative of the issue that this Court has to consider. It is the essence
of the rights thereby vested in the parties which must guide our decision.
- The crucial provisions of the 1991 Amendment Act are in s. 4:
4. Rights of custody - (1) For the purposes of this Part
of this Act, a person has rights of custody in respect of a child if, under
the law of the Contracting State in which the child was, immediately before
his or her removal, habitually resident, that person has, either alone or
jointly with any other person or persons, -
(a) The right to the possession and care of the child;
and
(b) To the extent permitted by the right referred to in
paragraph (a) of this subsection, the right to determine where the child is to
live.
(2) For the purposes of this Part of this Act, an applicant
who has rights of custody in respect of a child shall be deemed to be actually
exercising those rights, even though the child is in the possession of another
person, -
(a) If-
(i) The applicant has placed the child in the possession of
that other person pursuant to the right referred to in subsection (1)(b) of
this section; and
(ii) The child is intended to be in the possession of that
other person for a limited period of time; or
(b) If the child is in the possession of that other person
pursuant to that other person's rights of access in respect of that child.
- The definitions in s.2 of 'rights of access' and 'rights of custody' also
require consideration:
2. Interpretation - In this Part of the Act, unless
the context otherwise requires -
�
"Rights of access" mean the right to visit a child; and
includes the right to take a child for a limited period of time to a place
other than the child's habitual residence:
"Rights of custody" has the meaning given to that term by
section 4(1) of this Act:
- In my view, notwithstanding the argument of Mr Harrison to the contrary,
those definitions are not mutually exclusive. A right of intermittent
possession and care of a child will fall within s.4(1)(a) and to that extent
will fall within the definition of rights of custody also. No doubt it may
also fall within the definition of rights of access, so there is a possibility
of overlap. But no convincing reason has been given in argument for
postulating a sharp dichotomy between the two concepts. Nor has anything to
suggest mutual exclusiveness been derived from the Convention. Some rights
under the Act or the Convention will attach to custody, some to access. The
circumstance that remedies may in a given case be open under either head is
unimportant on the question of interpretation. Here, because of the nature of
the application made to the Court, we are concerned with custodial rights
only. Incidentally the concept of shared care, which as counsel informed us
from the bar currently features in Family Court practice in New Zealand, is
consistent with this approach.
- Interpreting s.4 in its natural and ordinary sense in the light of its
purpose and context, it appears to me that a parent who has substantial
intermittent rights to the possession and care of the child comes within
subs.(1)(a). On that point I am driven to differ from the interpretation now
under appeal, with full respect for the expertise in this field of the Judges
who have adopted it. The point is simply one of the natural and ordinary
meaning of language and scarcely bears elaboration.
- As to paragraph (b), Judge Whitehead had expert affidavit evidence before
him from Mr James Mueller, Attorney-at-Law of Arizona and currently Chairman
of the Family Law Section of the State Bar of Arizona. The Judge found:
It is clear therefore from Mr Mueller's evidence that the
applicant has a right to determine the child's place of residence which can
only be usurped by an application before the Arizona Court to modify the
applicant's visitation rights. The burden of such an application falls upon
the custodial parent being the respondent in this case.
- It is obvious that the Judge was using the expression 'custodial parent'
to reflect the language of the Indiana order. That in no way derogates from
the view I have expressed as to the necessity to look at that order in terms
of the substance of the rights conferred.
- I think that the affidavit supported the Judge's finding. As Mr Mueller
put it, the mother's right to determine the residence of the child was
'subject to existing visitation orders'. Mr Harrison rightly accepted in
argument that the parents could effectively and lawfully agree about the
future residence of the child, as indeed they implicitly did when they moved
to Arizona. The true view is thus that jointly they had and have the right to
determine where the child is to live. A joint right is enough under the
subsection.
- It should be added that there was no separate argument that, if the father
had rights of custody within the meaning of s.4, at the time of the removal
they were not actually being exercised or would not have been so exercised but
for the removal. 'Time' in s.12(1)(c) and like contexts in the 1991 Act should
be liberally construed to give effect to the Convention.
- For these reason, in my opinion, jurisdiction is established on a
straightforward reading of the New Zealand legislation. It also accords with
the spirit of the Convention. Counsel for the respondent accepts that a s.13
ground cannot be mounted. I would allow the appeal and direct the remission of
the case to the North Shore District Court for the making of an order for the
return of the child.
- Tompkins J authorises me to say that he concurs in the decision. The Court
being unanimous, there will be remission of the case to the District Court for
the making of an order for the return of the child to the United States and
any appropriate incidental orders.
- The object of the Guardianship Amendment Act 1991 as stated in the long
title is to amend the Guardianship Act 1968 in order to implement the Hague
Convention on the Civil Aspects of International Child Abduction. While there
are some differences in expression I cannot discern in the statute a
legislative intent to depart in matters of substance from the Convention and
to modify the obligations which New Zealand accepted in acceding to the
Convention. That being so it is sufficient to go straight to s4 which is
central to the resolution of the present appeal. Subsection (1) provides:
"For the purposes of this Part of this Act, a person has
rights of custody in respect of a child if, under the law of the Contracting
State in which the child was, immediately before his or her removal,
habitually resident, that person has, either alone or jointly with any other
person or persons-
(a) The right to the possession and care of the child;
and
(b) To the extent permitted by the right referred to in
paragraph (a) of this subsection, the right to determine where the child is to
live."
- I emphasise, because it is relevant to the application of both para (a)
and (b) in this case, that it is sufficient if the right in question is held
either alone or jointly with any other person or persons.
- The decree of the Indiana Court in relation to parental rights in respect
of the child provided:
"that the wife shall be awarded the sole care and custody of
the parties' minor child, [name omitted], born November 2 1986; that the
husband shall have reasonable rights of visitation with the said child to
include every other week-end, alternating holidays and summer vacation:"
- Notwithstanding the nomenclature employed, and in particular the
expressions "sole care and custody" and "visitation", the effect of the order
was that the visitation rights carried possession and care of the child for
substantial periods for the indefinite future. It follows in my view that
under the court order, and jointly with the mother, the father had the right
to possession and care of the child for the purposes of s4(1)(a).
- Then as to para (b) the expert evidence of Mr J W Mueller as to the law of
Arizona was that the custodial parent has the right to determine the residence
of a minor child inside or outside the State of Arizona on a permanent basis
subject to existing visitation orders; that when a custodial parent intends to
remove a minor child from the State of Arizona on a permanent basis then such
a move would effectively modify visitation rights of the non-custodial parent;
and that the removal in this case was in breach of the various rights of the
father including his visitation rights and his right to have input into and if
necessary to have litigated the issue of whether the child should have been
removed from Arizona at all.
- In terms of s4(1) it is sufficient if the right to determine where the
child is to live is a right that may be shared jointly with any person or
other persons. If both parents agree then they exercise that right jointly.
If, as here, the father does not consent then the court where the child is
habitually resident has jurisdiction to determine whether the child can be
taken to another jurisdiction to live. In C v C [1989] 2 All ER at 648
the Court of Appeal recognised that the right to determine a child's residence
may be a divided right and that, if a parent has the right to object to a
change of residence of the child and is not consulted or refuses consent, the
removal of a child from the jurisdiction would be wrongful within the meaning
of the Convention. And the report of the second meeting of the Special
Commission to review the operation of the Hague Convention (1993) noted at p28
that the argument that an order of the court granting custody which prohibited
the custodian from removing the child from the court's jurisdiction without
the consent of the other parent constituted only a modality attached to the
right of custody and not a situation of joint custody, had been rejected by a
French court as well as by courts in Austria, Australia, the United Kingdom
and the United States of America.
- Mr Harrison submitted, however, that the concepts of rights of custody and
rights of access under the Act and the Convention were mutually exclusive and
that custody rights were reposed in the primary care giver. I can see nothing
in the scheme and purpose of the legislation and the Convention to justify
departing from the ordinary and natural meaning of the words employed in s4.
Under the statute and the Convention questions of rights of custody and rights
of access are directed to different subjects and there is nothing inconsistent
with the parent having both rights of custody, if the access rights extend to
intermittent possession and care of the child, as well as those access rights
themselves. Whether those rights are rights of custody is important in
determining questions relating to the forum in which custody questions are to
be determined. If they are, then the parent can claim under s12(1) that at the
time the child was removed to New Zealand those rights would have been
exercised but for the removal. Access questions arise differently. They are
directed to arrangements for organising or securing the effective exercise of
rights of access.
- I would allow the appeal. I agree with the orders proposed by the
President.
Judgment of HARDIE BOYS
J |
- I agree with the judgments that have been delivered by the President and
by Richardson J and make only some brief observations.
- The case falls for decision under s 12 of the Guardianship Amendment Act
1991, an Act which, according to its long title, was enacted in order to
implement the Hague Convention on the Civil Aspects of International Child
Abduction. It is incumbent on the Court to construe the Act in a manner that
will as far as possible give effect to that purpose.
- The issue in this Court has been as to the meaning of s 4(1) which enacts,
but in a more extended form and with one particular difference, Article 5 of
the Convention. The difference is that while the Convention defines rights of
custody in a single formula, the statute has a two-fold cumulative formula. In
this case I think nothing turns on the distinction because I am satisfied, for
the reasons already given by my brethren, that both aspects are satisfied. The
father has, jointly with the mother, although to a lesser extent, the right to
possession and care of the child, and jointly with her has the right to
determine where the child is to live: this because the reality is that his
consent is required to a change of residence, or failing that there must be an
order of the Court (see C v C [1989] 2 All ER 465 at 648).
- I accept Mr Harrison's point that the Convention and the statute
differentiate between rights of custody and rights of access as defined by
them. That is necessary because they deal with two quite different situations.
One is the removal of the child from a country in breach of a parent's
custodial rights, the other is the facilitating of access between one country
and another; while the reference to access in s 4(2)(b) simply ensures that
the claim of a parent with custodial rights is not defeated by a parent while
exercising access rights.
- There is however no valid reason to take the distinction further in order
to differentiate, for the purposes of s 4(1), between the one who is sometimes
called the primary care giver and the one who has what used to be called
visiting rights, and to say that the former has rights of custody, but the
latter has none. To draw such a distinction would defeat the objective of the
Convention which is to ensure that questions of residence along with other
questions affecting the child's welfare are normally to be dealt with by the
Courts of the child's habitual residence.
- I therefore agree that the appeal should be allowed and the case remitted
to the District Court.
- By decree of the Lake County Superior Court of the State of Indiana dated
29 March 1990, the respondent wife was awarded the sole care and custody
of the child of the parties, and the husband was given reasonable rights of
visitation with the child to include every other weekend, alternating holidays
and summer vacation. The father alleges that the wife wrongfully removed the
child to New Zealand from Arizona in the United States, contrary to the Hague
Convention and to the Guardianship Amendment Act 1991.
- The Family Court Judge reached the conclusion that the removal of the
child was wrongful in accordance with the laws of Arizona, and wrongful
pursuant to the provisions of the Hague Convention, but was not wrongful under
the provisions of Section 4(1)(a) of the Guardianship Amendment Act 1991. An
appeal to the High Court was removed to this Court by an order made by the
High Court on 4 August 1994.
- The Guardianship Amendment Act 1991 is described in its long title as:
"(a) To amend the Guardianship Act 1968 in order to implement
the Hague Convention on the Civil Aspects of International Child Abduction;
and
(b) To provide for matters incidental thereto".
- That being its declared purpose, it should so far as possible be construed
in a manner which will implement the Convention and accord with its terms. It
is unfortunate that for reasons which are not readily discernible the Act has
departed from the wording of the Convention, instead of simply adopting it as
has apparently been done in other countries. Some of the differences appear to
be significant. One such difference is the basis for the conclusion reached by
the Family Court Judge.
- The application is brought under section 12. One of the requirements of
that section is that the child was removed from another Contracting State in
breach of the applicant's rights of custody in respect of the child. Rights of
custody are defined in section 4 as follows:
"(1) For the purposes of this Part of this Act, a person has
rights of custody in respect of a child if, under the law of the Contracting
State in which the child was, immediately before his or her removal,
habitually resident, that person has, either alone or jointly with any other
person or persons, -
(a) The right to the possession and care of the child;
and
(b) To the extent permitted by the right referred to in
paragraph (a) of this subsection, the right to determine where the child is to
live.
(2) For the purposes of this Part of this Act, an applicant
who has rights of custody in respect of a child shall be deemed to be actually
exercising those rights, even though the child is in the possession of another
person, -
(a) If -
(i) The applicant has placed the child in the possession of
that other person pursuant to the right referred to in subsection (1)(b) of
this section; and
(ii) The child is in the possession of that other person
pursuant to that other person's right of access in respect of the child."
- The question is whether the father has rights of custody which have been
breached by the removal of the child to New Zealand. Although the Indiana
Court order refers to the wife having "sole custody", the word does not appear
to be used in the same sense as it is used in the Convention or in the New
Zealand statute. The terms of the order clearly give the father the right to
the possession and care of the child during alternating holidays and summer
vacations. The wife does not have the sole right to determine where the child
is to live, because the father's right of access must be observed. This is
made clear by the expert evidence of Mr Mueller. Where the child is to live
can to this extent be determined only by the agreement of both parents. The
father, therefore, has jointly with his wife the right to determine where the
child is to live.
- It follows that the father has rights of custody in terms of section 4,
and that these rights have been breached by the wife's removal of the child to
New Zealand without his consent.
- Mr Harrison argued that the Act and the Convention are careful to
distinguish rights of custody and rights of access, each being treated
separately. While this is true, the respective definitions appear to overlap
rather than to be mutually exclusive. The fact that a right of access includes
a right to take the child for a limited period of time to a place other than
the child's habitual residence, does not preclude that right being also a
right of custody if it satisfies the requirements of section 4.
- The other requirements in section 12(1) are clearly satisfied. The grounds
of the application being therefore made out, the Court is required by
subsection (2) to make an order that the child be returned forthwith. I would,
therefore, allow the appeal. I agree with the orders proposed by the
President.