DARRYL BRUCE QUEEN v SUSAN MARY BUTLER [2001] NZCA 205 (5 July 2001)

IN THE court of appeal of new zealand

ca159/01

	between	darryl bruce queen
		Appellant

	and	susan mary butler
		Respondent

Hearing:	10 July 2001
Coram:	Gault J Keith J Blanchard J
Appearances: (By telephone)	R J Murfitt for Appellant P F Whiteside for Respondent
Judgment:	10 July 2001

judgment of the court delivered by GAULT J

[1] In a judgment delivered on 2 April 2001 in the High Court at Christchurch Panckhurst J allowed the appeal of a mother of three children against orders made in the Family Court concerning custody of the children and their non-removal with the mother to Ireland, the country of her birth.

[2] Following a supplementary judgment delivered on 11 May 2001 and settling the terms of orders, Mr Queen, the father, applied for leave to appeal to this Court under s31B Guardianship Act 1968.He applied also to the High Court for a stay of execution of the orders, seeking to have the children remain in New Zealand pending determination of the appeal.In a judgment delivered on 5 July 2001, Panckhurst J refused the application for stay.The mother and children are booked to fly out of Christchurch tomorrow (11 July).

[3] On 9 July this Court received a notice of application for an order staying execution pending appeal.By arrangement we heard counsel on that application by telephone this morning.

[4] The application for stay has been limited to apply only to the eldest of the three children, 10 year old Dylan, who, it is said, has indicated a strong preference to remain in New Zealand - though the reliability of that has been challenged.

[5] Having heard Mr Murfitt in support of the application, we indicated that it would be declined.We are satisfied, for the same reasons given by Panckhurst J in refusing the application for stay made to him, that it would not be appropriate to intervene at this late stage.

[6] We are satisfied that the right of appeal will not be rendered nugatory by allowing the orders to be given effect.That indeed is effectively acknowledged by the limitation of the application for stay to apply only to one of the three children.The arrangements in place pursuant to the orders deal with issues of return of the children to New Zealand and the costs of their travel and we have no concern on that ground.

[7] We are satisfied that the application for stay could have been made sooner and would not have resulted in the very late consideration of the changed circumstances of the application being limited to the one child and the relinquishment of the tenancy of the house in which the mother has been living with the children in Christchurch.

[8] Having heard counsel, we intimated that the limited ground upon which leave to appeal can be obtained means that it will be necessary to establish a question of law of sufficient general or public importance and we were not persuaded that the prospects of securing leave can be rated as high.

[9] We readily recognise that the overriding principle is the interests of the children.To date, the whole approach of both parties has been to recognise the importance of keeping the three children together.We are satisfied that their relationship with their mother is such that it is appropriate that they travel with her and we are confident that should an appeal ultimately succeed the children will be returned to New Zealand without difficulty.The New Zealand courts retain jurisdiction.

[10] The respondent is entitled to costs which we fix at $500 together with disbursements to be fixed, if necessary, by the Registrar.

Solicitors

Rhodes & Co, Christchurch, for Appellant

Wynn Williams & Co, Christchurch, for Respondent