|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of New Zealand |
Last Updated: 17 January 2018
For a Court ready (fee required) version please follow this link
ANY PUBLICATION OF A REPORT OF THESE PROCEEDINGS MUST COMPLY WITH S 139 OF
THE CARE OF CHILDREN ACT 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA221/05
BETWEEN LENA-JANE PUNTER Appellant
AND THE SECRETARY FOR JUSTICE AS THE NEW ZEALAND CENTRAL AUTHORITY EX-PARTE ADAM PUNTER OF AUSTRALIA
Respondent
Hearing: 8 December 2005
Court: Anderson P, Glazebrook, William Young, O'Regan and Robertson JJ Counsel: P D McKenzie QC and P A C Foster for Appellant
C R Pidgeon QC for Respondent
Judgment: 29 June 2006
JUDGMENT OF THE COURT
A The appeal is allowed and the order for the return of the children is
set
aside.
B There is no award of costs.
REASONS
Anderson P, Glazebrook, William Young, O’Regan JJ [1] Robertson
J [220]
PUNTER V THE SECRETARY FOR JUSTICE AS THE NEW ZEALAND CENTRAL AUTHORITY EX-
PARTE ADAM PUNTER OF AUSTRALIA CA CA221/05 [29 June 2006]
(Given by Glazebrook J)
Table of Contents
Para No
Introduction [1] The legislation [7] Implementation of the Hague Convention [7] Interpretation principles [10] Purpose of the Hague Convention [13] Applications for return [18] Habitual residence [20] Other definitions [26] Orders for return [28] Speedy determination [29] Background [30] This Court’s first decision in this case [47] Judge Ullrich’s decision [53] Goddard J’s decision [62] Submissions on behalf of Mrs Punter [74] Submissions on behalf of Mr Punter [78] Issues [84] Status of first Punter decision [85] Does SK v KP apply? [87] Should there be a parent-centred approach? [91] Parental purpose of delimited stay [109] Domicile and habitual residence [110]
Lord Scarman’s definition [115] Delimited
period cases [124] Cases referred to by Mr Pidgeon [142] Shuttle
custody [153] The cases [154] Analysis [165] Civil and
common law jurisdictions [170] Was there a unilateral change of
purpose? [173] Policy issues [175] Should SK v KP be
overruled? [188] Discussion of Judge Ullrich’s decision [189]
Discussion of Goddard J’s decision [204] Conclusion and
result [218]
[1] This appeal concerns the question of habitual residence under the
Hague
Convention on the Civil Aspects of International Child Abduction of 25
October
1980 (the Hague Convention).
[2] Mr and Mrs Punter married in Australia in 1995 and had two children. They separated in March 2001. In January 2002, Mrs Punter wished to relocate to New Zealand to be near her family. Mr Punter agreed that she could take the children with her on the terms set out in a document signed by Mrs Punter on 18 January
2002. The document recorded what is commonly known as a “shuttle
custody” arrangement whereby the children were to spend
two years in New
Zealand with their mother and then be returned to Australia to spend the next
two years with their father. The
arrangement was to continue until the children
were 18 years old.
[3] Some five months later, Mrs Punter applied to the Family Court in
New Zealand for custody of the children. The New Zealand
Central Authority
responded by making an application under s 12 of the Guardianship Amendment Act
1991 (the Act then implementing
the Hague Convention). By judgment, now
reported as Punter v Secretary for Justice [2003] NZCA 306; [2004] 2 NZLR 28, this Court,
by majority (Blanchard and Glazebrook JJ), held that Mrs Punter’s
application for custody did not amount to a
retention of the children. There
could, in the circumstances, be no retention until the end of the two-year
period. At that time,
the question of the habitual residence of the children
would need to be determined. Blanchard and Glazebrook JJ, in separate
judgments,
provided guidance as to how that question might be
approached.
[4] The two-year period having expired and the children not having been returned, the Central Authority renewed its application for the return of the children to Australia. By judgment of 20 December 2004, now reported at [2005] NZFLR
481, Judge Ullrich QC held that the children’s habitual residence at the time of retention (which was agreed to be 7 February 2004) was New Zealand. Her decision was largely based on the shuttle custody nature of the arrangement and the extended period of day to day living in New Zealand. Judge Ullrich accordingly refused the application for the return of the children.
[5] On appeal, by judgment now reported at [2006] NZFLR 255, Goddard J
held that the children’s habitual residence remained in Australia. She
considered that, absent exceptional circumstances,
the entry into a long term
shared custody arrangement involving children spending delimited periods of time
in another jurisdiction
should not change their habitual residence. Goddard J
suspended the making of orders for the return of the children to
enable
Mrs Punter to decide whether she would seek leave to appeal to this Court or
whether she was prepared to allow the Australian
Courts to determine custody.
She also left open the question of the conditions to be attached to any order
for the return of the
children to Australia.
[6] Leave to appeal to this Court having been granted (by
consent) on
11 November 2005, Mrs Punter now appeals against Goddard J’s
decision.
The legislation
Implementation of the Hague Convention
[7] The Guardianship Amendment Act 1991 (the Amendment Act) was enacted
to incorporate the Hague Convention into New Zealand
Law. The Convention was
annexed as a schedule to the Amendment Act and the provisions of the Amendment
Act itself to a large extent
mirrored the main provisions of the Hague
Convention.
[8] The Care of Children Act 2004 repealed and replaced the
Guardianship Act
1968 on 1 July 2005. Part 2, subpart 4, ss 94 – 124 of the Care of
Children Act replaced the Amendment Act provisions relating
to the Hague
Convention. As was the case under the Amendment Act, the Convention itself is
annexed to the Care of Children Act in
Schedule 1. Section 94 of the Care of
Children Act sets out the aims of the subpart as follows:
94 Purpose of this subpart
The purpose of this subpart is to—
(a) implement in New Zealand law the Hague Convention on the Civil
Aspects of International Child Abduction; and
(b) provide for related matters; and
(c) replace the Guardianship Amendment Act 1991.
[9] Section 160 of the Care of Children Act provides that all
proceedings under the Guardianship Act that were not withdrawn
or finally
determined by 1 July 2005 are to continue under the Care of Children Act. The
provisions of the Care of Children Act
relevant to this case are, however,
substantially to the same effect as those in the Amendment Act.
Interpretation principles
[10] This Court has held that the provisions of the Amendment Act should be interpreted consistently with the Convention and the manner in which it is interpreted in other Contracting States – see Dellabarca v Christie [1999] 2 NZLR
548 at 551 and Chief Executive of the Department for Courts v Phelps
[2000]
1 NZLR 168 at [14]. The same will obviously apply to the Care of Children
Act.
[11] The interpretation principles set out in the Vienna Convention on the Law of Treaties (1155 UNTS 331, entered into force 27 January 1980) are thus relevant. Those principles were applied by the Supreme Court in Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289 at [24] and were discussed in some detail in Glazebrook J’s judgment in Zaoui v Attorney-General (No 2) [2004] NZCA 244; [2005] 1 NZLR 690 at [128] - [130]. The Vienna Convention requires treaties to be interpreted in good faith in accordance with the ordinary meaning of the words as seen in their context and in the light of the treaty’s object and purpose. In Zaoui, Glazebrook J pointed out that this approach to interpretation is effectively the same as New Zealand’s approach to the interpretation of statutes as set out in s 5 of the Interpretation Act
1999, although there are a number of other provisions of the Vienna Convention with no direct counterpart in the Interpretation Act. For example, under art 31(3)(b) of the Vienna Convention, subsequent practice in the application of a treaty by state parties is to be taken into account in its interpretation. The nearest analogy in the Interpretation Act is s 6 which provides that enactments apply to circumstances as they arise.
[12] Glazebrook J (at [131] of Zaoui) said that, if there was a
divergence between the interpretation of a provision under domestic principles
and that under the Vienna
Convention, it would be a matter of statutory
interpretation as to whether domestic or international interpretation principles
were
meant to apply. As in that case the statute directly referred to the
Refugee Convention, she considered that this clearly pointed
to the
international interpretation principles applying. Given the direct reference
to the Hague Convention in the Care of Children
Act and its annexure to the
statute, the international interpretation principles would thus apply in this
case, if there is any divergence.
Purpose of the Hague Convention
[13] The Hague Convention deals with the protection of rights of custody
and rights of access in a cross-border situation. The
preamble provides as
follows:
Firmly convinced that the interests of children are of paramount importance
in matters relating to their custody.
Desiring to protect children internationally from the harmful effects of
their wrongful removal or retention and to establish procedures
to ensure their
prompt return to the State of their habitual residence, as well as to secure
protection for rights of access.
[14] Article 1 of the Convention states that its objects are:
(a) to secure the prompt return of children, wrongfully removed to or
retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in the other
Contracting
States.
[15] One of the most influential early commentators on the Hague Convention was Professor Pérez-Vera, Professor of International Law at the University of Madrid and the Rapporteur to the Commission that drafted the Convention – see Pérez-Vera Explanatory Report to the Convention on the Civil Aspects of International Child Abduction (Acts and Documents of the 14th Session, Vol III,
1982) (the Pérez-Vera report).
[16] In that report, Professor Pérez-Vera points out (at
para 19) that the Convention makes no attempt to regulate
the problem of the
award of custody or access rights. Rather, it rests implicitly on the principle
that any debate on the merits
of the question should take place before the
competent authorities in the state where the child had its habitual residence
prior
to its removal or retention. At para 11 she notes that both removal and
retention result in a child being taken out of the family
and social environment
in which his or her life has developed. She also speaks in that paragraph and
the following paragraphs of
the aim of the Convention being to avoid forum
shopping by the party abducting or retaining the child.
[17] Insofar as it relates to rights of custody, therefore, the primary
emphasis of the Hague Convention is on the prompt return
of children who have
been wrongfully removed from or retained away from the state of their habitual
residence. The rationale is
to deter such removal or retention but also (and
importantly) to ensure that it is the state where the child has the most
personal
ties that will decide custody and access disputes related to that
child.
Applications for return
[18] Section 105(1) of the Care of Children Act, which is in similar
terms to the previous s 12(1) of the Amendment Act, deals
with applications for
the return of children. It provides as follows:
105 Application to Court for return of child abducted to New
Zealand
(1) An application for an order for the return of a child may be made to
a Court having jurisdiction under this subpart by, or
on behalf of, a person who
claims—
(a) that the child is present in New Zealand; and
(b) that the child was removed from another Contracting State in breach
of that person's rights of custody in respect of the child;
and
(c) that at the time of that removal those rights of custody were
actually being exercised by that person, or would have been
so exercised but for
the removal; and
(d) that the child was habitually resident in that other Contracting State immediately before the removal.
[19] The concept of habitual residence is thus one of the key
factors in determining applications under s 105(1).
Habitual residence
[20] The term habitual residence has been used in a number of
Hague Conventions. It was first used in relation to
children in the Hague
Convention on Guardianship of 1902 and has been used in a number of subsequent
Hague Conventions dealing
with the international protection of children,
family and property relations, international legal co-operation and litigation,
and international commercial and financial law. See, for example, the
Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and
Co-operation in Respect of Parental Responsibility and Measures for the
Protection of Children of 19 October 1996
(Child Protection Convention), the
Convention on Protection of Children and Co-operation in Respect of
Intercountry Adoption
of 29 May 1993, the Convention on the International
Protection of Adults of 13 January 2000, the Convention on the Law Applicable
to
Products Liability of 2 October 1973, the Convention on the Recognition and
Enforcement of Foreign Judgments in Civil
and Commercial Matters of 1
February 1971 and the Convention on Civil Procedure of 1 March 1954.
[21] There is no substantive definition of habitual residence, either in
the Care of Children Act, in the Hague Convention itself
or in any of the other
Hague Conventions. The definition of habitual residence in s 95 of the Care of
Children Act merely deals
with the situation where a Contracting State has more
than one system of law. The lack of a substantive definition is deliberate.
The inclusion of a definition of the term habitual residence seems to be
proposed whenever a Hague Convention is to contain a provision
based on this
concept but such proposals have, thus far, been unsuccessful. For example, the
Special Commission rejected attempts
to include a definition of habitual
residence in the 1996 Child Protection Convention, referred to at [20]
above.
[22] Lagarde Explanatory Report on the 1996 Hague Child Protection Convention (Proceedings of the 18th Session, Vol II, 1998) states (at para 40) that a positive definition had been proposed but it went against the Conference’s tradition and
received no support. He points out that it would have risked disturbing the
interpretation of numerous other conventions utilising
the same concept.
The Special Commission also rejected a United States proposal defining
situations which would generally not
result in change of habitual residence,
although the discussions showed that the Commission approved certain elements of
it. Thus
it was accepted, for example, that the temporary absence of the child
from the place of his or her habitual residence for reasons
such as vacation,
school attendance or the exercise of access rights did not usually modify the
child’s habitual residence.
[23] Laurence Collins (ed) Dicey and Morris on the
Conflict of Laws (Vol 1 13ed 2000) explains the policy behind the lack
of a substantive definition of habitual residence in the Hague Conventions at
149 - 150:
No definition of habitual residence has ever been included in a Hague
Convention; this has been a matter of deliberate policy, the
aim being to leave
the notion free from technical rules which can produce rigidity and
inconsistencies as between different legal
systems. In those contexts, the
expression is not to be treated as a term of art but according to the ordinary
and natural meaning
of the two words it contains.
[24] Similarly, de Winter “Nationality or Domicile? The Present State of Affairs” (1969) 128 Recueil des cours de l’Académie de droit international de la Haye
346 explains (at 428) that the absence of a definition of habitual residence
gives the courts more latitude to decide, on the basis
of all the factual data
available and guided by their commonsense, whether or not a person has his
or her habitual residence
in a country.
[25] As was said in Re M (Minors) (Residence Order: Jurisdiction)
[1993] 1 FLR
495 (EWCA) at 499, habitual residence is primarily a question of fact to be decided by reference to the circumstances of each case. See also, for example, this Court’s first decision in Punter at [3] per Gault P, at [29] per Blanchard J and at [125] per Glazebrook J; in the United Kingdom, Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 (HL) at 578; in Australia, State Central Authority v McCall (1994)
[1994] FamCA 156; 121 FLR 65 (Aust FC) at 70; and in Canada, Korutowska-Wooff v Wooff
(2004)
242 DLR (4th) 385 (Ont CA) at 390. We note, for completeness, that in the United States habitual residence is considered to be a mixed question of fact and law: see Feder v Evans-Feder [1995] USCA3 892; 63 F3d 217 (3rd Cir, 1995) at 222, Silverman v Silverman
[2003] USCA8 412; 338 F3d 886 (8th Cir, 2003) at 896, Delvoye v Lee [2003] USCA3 118; 329 F3d 330 (3rd Cir
2003) at
332 and Mozes v Mozes [2001] USCA9 16; 239 F3d 1067 (9th Cir, 2001) at 1073.
This appears, however, to be so that there is more scope for appellate review -
see Kelly “Taking
Liberties: The Third Circuit Defines “Habitual
Residence” Under the Hague Convention on International Child
Abduction”
(1996) 41 Vill L Rev 1069 at 1084.
Other definitions
[26] Removal is defined in s 95 as meaning removal or retention in terms
of art 3 of the Convention. Article 3 of the Hague Convention
provides as
follows:
Article 3
The removal or the retention of a child is to be considered wrongful where— (a) it is in breach of rights of custody attributed to a person, an institution
or any other body, either jointly or alone, under the law of the State in
which the child was habitually resident immediately before the
removal or retention; and
(b) at the time of removal or retention those rights were
actually exercised, either jointly or alone, or would have
been so exercised but
for the removal or retention.
The rights of custody mentioned in sub-paragraph a above, may arise in
particular by operation of law or by reason of a judicial or
administrative
decision, or by reason of an agreement having legal effect under the law of that
State.
[27] Rights of custody are defined in s 97 of the Care of Children Act as
follows:
97 Rights of custody defined
For the purposes of this subpart, rights of custody, in relation to a child,
include the following rights attributed to a person,
institution, or other body,
either jointly or alone, under the law of the Contracting State in which the
child was habitually resident
immediately before the child's removal or
retention:
(a) rights relating to the care of the person of the child (for example,
the role of providing day-to-day care for the child);
and
(b) in particular, the right to determine the child's place of residence.
Orders for return
[28] Section 105(2) provides that, if the Court is satisfied that the
grounds set out in s 105(1) are made out, then it must make
an order to return
the child to the person or country specified in the order, subject to s 106.
Section 106 sets out a number of
grounds upon which an order can be refused. It
provides as follows:
106 Grounds for refusal of order for return of child
(1) If an application under section 105(1) is made to a Court in relation
to the removal of a child from a Contracting State to
New Zealand, the Court may
refuse to make an order under section 104(2) for the return of the child if any
person who opposes the
making of the order establishes to the satisfaction of
the Court—
(a) that the application was made more than 1 year after the removal of the child, and the child is now settled in his or her new environment; or
(b) that the person by whom or on whose behalf the application is made— (i) was not actually exercising custody rights in respect of the child
at the time of the removal, unless that person establishes to the
satisfaction of the Court that those custody rights would have been exercised
if the child had not been removed; or
(ii) consented to, or later acquiesced in, the removal; or
(c) that there is a grave risk that the child's return—
(i) would expose the child to physical or psychological harm; or
(ii) would otherwise place the child in an intolerable situation; or
(d) that the child objects to being returned and has attained an age and
degree of maturity at which it is appropriate to give
weight to the child's
views; or
(e) that the return of the child is not permitted by the
fundamental principles of New Zealand law relating to the
protection of human
rights and fundamental freedoms.
(2) In determining whether subsection (1)(e) applies in respect of an
application made under section 105(1) in respect of a child,
the Court may
consider, among other things,—
(a) whether the return of the child would be inconsistent with any rights that the child, or any other person, has under the law of New Zealand relating to political refugees or political asylum:
(b) whether the return of the child would be likely to result
in discrimination against the child or any other person
on any of the grounds
on which discrimination is not permitted by the United Nations
International Covenants on Human Rights.
(3) On hearing an application made under section 105(1) in respect of a
child, a Court must not refuse to make an order under
section 105(2) in respect
of the child just because there is in force or enforceable in New Zealand an
order about the role of providing
day-to-day care for that child, but the Court
may have regard to the reasons for the making of that order.
Speedy determination
[29] Finally, we point to s 107, which provides that applications must be
dealt with speedily:
107 Applications to be dealt with speedily
(1) A Court to which an application under section 105(1) is made must, so
far as practicable, give priority to the proceedings
in order to ensure that
they are dealt with speedily.
(2) Subsection (3) applies to an application made to a Court under section
105(1) in respect of a child if the application is not determined within the
period of 6 weeks commencing on the date on which the
application is
made.
(3) The Authority may, and must if requested by the applicant or the
Central Authority of the Contracting State from which
the child was
removed, request the Registrar of the Court to supply a statement of the reasons
why the application has not been
determined within that period, and the
Registrar must, as soon as practicable, supply the statement to the
Authority.
(4) The Authority must send a copy of the statement to the applicant or,
as the case may require, the Central Authority of the
relevant Contracting
State.
Background
[30] The parties relied before Judge Ullrich on material filed in relation to the first application as well as updating affidavits filed by both parties. Affidavits for the first application were filed by Mrs Punter on 3 July 2002 and 13 November 2002 and by Mr Punter on 16 September 2002 and 26 November 2002. Mr and Mrs Punter filed updating affidavits on 28 June 2004 and 8 June 2004 respectively. There was also some cross-examination of the deponents, including Mrs Punter, before Judge Ullrich. Mr Punter was not cross-examined but was present at the hearing. For
convenience we summarise all of the evidence, including the matters dealt
with in the previous judgment of this Court.
[31] Mr and Mrs Punter’s two children are a girl (A) born on 3
April 1996 and a boy (B) born 28 August 1998. Both children
were born in
Australia, that being where their parents had met and married. Mr Punter was
born in England and went to live in Australia
in 1973. He is an Australian
citizen. Mrs Punter is a New Zealander who had been in Australia for some two
years before her marriage,
which took place in 1995. After their marriage, Mr
and Mrs Punter lived in Brisbane in army accommodation. They separated for
a
time when A was about a year old. Mrs Punter was the primary caregiver of A
during this time. They reconciled and began living
together again before
B’s birth. The family lived in Brisbane for some two and a half years
before relocating to Sydney for
some fourteen months.
[32] Mr and Mrs Punter separated again on 22 March 2001. At first there
was a joint custody arrangement, with the children spending
four days with the
mother and the rest of the week with the father (except when he was away on
service with the army). In June 2001,
however, Mrs Punter moved to a more
distant suburb with the children and the earlier arrangement was no longer
practical. There
is some dispute between the parents over the extent of Mr
Punter’s contact with the children after Mrs Punter’s move
but it is
clear that the children stayed with their father at least one weekend in two on
average.
[33] On 7 January 2002, Mrs Punter told Mr Punter that she wished to come to New Zealand with the children. Mr Punter immediately applied for various orders to secure his access and guardianship rights, including an order preventing the removal of the children from Australia. On 18 January 2002, the parties reached agreement on the arrangement whereby the children were to alternate between New Zealand and Australia at two-year intervals until they were 18 years old. This was embodied in a statutory declaration prepared by Mr Punter for Mrs Punter to sign. The declaration was never, however, registered with the Australian courts and it appears was prepared without either party taking legal advice. It provided in relevant part as follows:
That Adam Punter and myself have joint parental responsibility, in
consultation with each other, for making decisions about the long
term care,
welfare and development of the said children of the marriage.
That each parent have responsibility for making decisions about the day to
day care and development of the said children of the marriage.
That upon a [sic] amicable agreement with Adam Punter to take the said
children of the marriage to New Zealand, I agree to return
the children to Adam
Punter for full care for a period in two years for two years as so Adam Punter
can maintain a relationship with
the said children, I agree to continue with
this until the children are 18 years old. ...
That upon a [sic] amicable agreement with Adam Punter to take the said
children of the marriage to New Zealand, I agree to pay for
a return airfare for
children to New Zealand or a return airfare for the said children of the
marriage to Australia to reside with
Adam Punter. I agree to pay for this once
a year in December. ...
That if in two years time of this date 6.2.02 I don’t return the said
children of the marriage or I don’t adhere to the
above terms and
conditions I forfeit all support, including child maintenance from Adam
Punter.
[34] As a consequence of the arrangement reached, Mr Punter
withdrew his proceedings and, on 7 February 2002, Mrs Punter
left with the
children to come to New Zealand. On 4 July 2002 she applied to the Family Court
in New Zealand for custody of her
children. The application was made on notice
and she disclosed the shuttle custody arrangement to the Court, annexing the
statutory
declaration to her affidavit in support of her custody
application.
[35] Mr Punter responded with a request under the Hague Convention for
the return of the children. In Mrs Punter’s affidavit
of 13 November 2002
in opposition to the application for the return of the children to Australia,
she said that, at the time of signing
the statutory declaration, she had fully
intended to abide by the agreement but, as she and the children had begun to
settle in New
Zealand, she decided that returning the children to Australia by 6
February 2004 might not be in their best interests. She also
indicated that,
since being served with the Hague Convention application, she had been thinking
about where the best interests of
her children may lie and had decided that she
may possibly return with them to Australia.
[36] Mrs Punter’s affidavit of June 2004 dealt with the position of the children since the earlier hearing. She deposed that the children had become well settled in New Zealand. B attended two kindergartens when they first arrived and has now
progressed, with his kindergarten friends, to the same school as his sister.
He is involved in Sea Scouts and started playing soccer
in 2004. A is doing
well at school, is involved in Brownies and will begin gymnastics soon. The
children have been involved in
kapa haka at their school and are enjoying the
Maori side of their heritage. Mrs Punter’s sister lives about two hours
drive away on a farm with their father. One of the sister’s daughters is
the same age as A and both Mrs Punter’s children
have spent Christmas
holidays at the farm.
[37] Mrs Punter has a new baby boy who was ten and a half months old at
the time the affidavit was sworn (making him six and a
half months old at the
date of retention). She deposed that both A and B have a strong relationship
with their baby brother. Mrs
Punter, the baby’s father, Mr R, and the
children live in a house owned by Mr R’s mother. They are hoping to buy
the
house from her when they have raised a deposit. Mr R has his family close
at hand. His brother, M, has two children who are
the same age as A
and B. The children play together and Mrs Punter’s children have
sleepovers at M’s house.
[38] Mrs Punter deposed to being very keen for the Hague Convention
matters to be finally resolved so that a proper plan for access
for Mr Punter
can be put in place. She said that she has always been happy for Mr Punter to
come to New Zealand to see the children
and would be happy for the children to
go to Australia for access “but obviously not while Hague Convention
matters are proceeding.”
[39] In cross-examination, Mrs Punter agreed that it was shortly after she and Mr R began living together that she applied for custody of A and B. When asked whether that was a factor in her decision she said no and that her “primary factor” was that she did not want the children to be unsettled. Mrs Punter confirmed that she had been living in the same house as Mr R in Australia before she came to New Zealand and that he came over to New Zealand at the same time she did on the same plane. She said that he was not at that time her boyfriend. In an earlier affidavit dated 13 November 2002, Mrs Punter said that Mr R had, however, previously been her boyfriend in New Zealand before she moved to Australia in 1993.
[40] When Mrs Punter first came back to New Zealand in 2002 she lived
with her sister but she and the children started living
with Mr R two to three
months later. She confirmed that she would return to Australia if the return of
the children was ordered and
admitted that she will not feel settled until these
custody proceedings were settled. She said, however, that the children have
been settled and the proceedings have not affected them, even though they know
of them “but only in a very light way”.
[41] Mrs Punter said that she had come back to New Zealand in 2002
because she had extended family support here whereas she only
had Mr Punter in
Australia. She hoped, if she were required to go back, that Mr R would
accompany her. She admitted that she had
spoken to Mr Punter about returning
to Australia but said that “this was early in the piece”. Now the
children are very
settled in New Zealand with their own lives and they are very
much integrated into the small township they live in.
[42] Mr R’s brother, M, and his wife swore an affidavit attesting
to the close personal relationship that has developed
between A and B and their
own children, as well as with the children of their neighbour. Their children
think of A and B as cousins.
In cross-examination, M’s wife said
Mrs Punter had never discussed (at least in any detail) returning to
Australia
or the children returning to Australia. M was not
cross-examined.
[43] One of Mrs Punter’s five sisters also swore an affidavit. She deposed that Mrs Punter and the children appear to her to have been welcomed into Mr R’s family who, she understands, have lived in the area for some forty years. Mrs Punter’s sister deposed to regular family functions and the fact that Mrs Punter’s children and her own stay with each other in the school holidays. She considered this had given them a greater sense of belonging and that they had been able to experience their Maori heritage in New Zealand. Her impression is that the children are happy at school with a lot of friends in the area. They are involved with outside school activities and sports. In cross-examination, she said that Mrs Punter had discussed the possibility of going back to Australia, she thought after the High Court hearing.
[44] Mrs Punter’s father deposed that A and B seemed to him to be
settled. They are part of a large family and are
also much supported
by Mr R’s family. Mrs Punter’s father said that he generally came
up once a year perhaps for
a couple of months to see the children. He said that
Mrs Punter had talked about a year before about going back to Australia to
work.
[45] Mr Punter, in his affidavit of 28 June 2004, responded to the
affidavits filed on Mrs Punter’s behalf but said that
he only had limited
knowledge of his children’s current circumstances. He deposed to his
daughter having, in one of their
weekly telephone conversations, mentioned two
boyfriends, one of whom is the son of a friend of his and Mrs Punter’s and
who
resides on the Gold Coast. Mr Punter deposed that he considered this to
be evidence of his daughter’s ongoing connection
to people and places in
Australia. He also said that the children’s maternal aunt, with whom
they have a close relationship,
resides in Brisbane.
[46] Mr Punter said that, in his weekly telephone calls, the children are very happy to talk to him and constantly ask when they can see him and often say that they miss him. He has not visited them in New Zealand as he wants to maintain his finances to ensure he can fund their return to Australia. For completeness, we note that Mr Punter was discharged from the Australian army for medical reasons in March
2002. He is in receipt of a disability pension and has moved back to
Brisbane to live.
This Court’s first decision in this case
[47] As indicated at [3] above, this Court held in its earlier decision, by majority, that there had been no retention of the children and so the application for return was premature. Mr Pidgeon indicated from the Bar that this decision has been causing practical problems. If that is so, then this may be a reason for the Court to reconsider that decision in a subsequent case. In this case, however, the matter is res judicata as Mr Pidgeon accepts. We note, however, that this Court’s earlier decision was confined to the issue of whether an application for custody in itself constitutes a retention of the children contrary to the Hague Convention in circumstances where
the existence of a parental agreement had been disclosed and there was no
intention of retaining the children in New Zealand if that
custody order had
been refused.
[48] The Court was also split on the question of habitual residence.
This had not been dealt with in the Family Court. Goddard
J had allowed the
matter to be raised for the first time on appeal. Her decision, reported at
[2003] 3 NZLR 54, held that the children’s habitual residence was
Australia.
[49] In this Court, Gault P said that Goddard J should not have allowed the question of habitual residence to be argued for the first time on appeal. He did not, however, consider that the Court could revisit her decision on that issue. The conclusion that the children were habitually resident in Australia in July 2002 (which Gault P considered to be the relevant retention date) was one open to her and, in addition, was a finding of fact against which there was no right of appeal. We note this has since changed and an appeal lies to this Court (with leave) on matters both of fact and law – see s 145(1)(b) of the Care of Children Act and SK v KP [2005]
3 NZLR 590 at [31].
[50] Blanchard J considered that, in view of the importance of
the habitual residence issue, Goddard J was right to
allow it to be raised for
the first time on appeal. He said, however, that it may have been better for
the matter to have been remitted
to the Family Court where it could have been
determined after the parties had had the opportunity to adduce further evidence
on the
point. He said that the question of habitual residence was
“logically prior” to that of retention. This is because,
if the
children were not habitually resident in Australia, any retention of them in New
Zealand by Mrs Punter could not have been
contrary to the Convention,
notwithstanding that it was a breach of the agreement between the parents. He
agreed with Gault P that
the matter could not, however, be raised before this
Court on appeal as it is well established that the question of habitual
residence
is a question of fact.
[51] Blanchard J went on to say that some observations could nevertheless be made on the subject of habitual residence for the guidance of the Family Court. He saw much force in the submissions made on behalf of Mrs Punter that this was not a
case in which the children were to be out of Australia for a temporary period
only. They would return to Australia after two years
but, equally, they would
return to New Zealand at the beginning of the next two-year period and
thereafter would spend equal amounts
of time in the two countries. He also saw
force in counsel’s warning that most of the cited cases, including
Mozes v Mozes, are concerned with situations which do not involve the
concept of shuttling. The only cases that had been referred to which did
involve shuttle arrangements were Johnson v Johnson (Supreme
Administrative Court, Sweden, Case No 7505-1995, 9 May 1996) and Watson v
Jamieson 1998 SLT 180 (OH SC). He said that both decisions appear to have
the support of the leading text, Beaumont and McEleavy The Hague
Convention on International Child Abduction (1999) at 99 - 100.
[52] Glazebrook J, after an extensive discussion of the concept
of habitual residence, concluded that Goddard J had
made errors of principle
that amounted to errors of law in her analysis of habitual residence. She
would have remitted the question
of habitual residence of the children to the
Family Court to be determined in accordance with the principles she had
outlined.
Judge Ullrich’s decision
[53] Judge Ullrich began by setting out a summary of the
shuttle custody agreement in this case and the history of
the proceedings.
She then went on to describe the current situation of the children. She
concluded:
[21] I find that the children have a well-established life in New
Zealand with a settled routine involving social contacts, friends
and family.
The mother has contemplated a return to Australia and would be able to manage
living there although it is clearly not
her preference.
[54] Judge Ullrich said that the fact of habitual residence cannot be pre-determined by the parents. They can have an intention as to location and time to be spent and activities to be undertaken in that location but they cannot determine what will qualify as habitual residence. This is because habitual residence is a question of fact to be determined by an assessment of the settled purpose of the person or persons who have the legal care of the child and all the circumstances of the child within the jurisdiction alleged to be the habitual residence.
[55] Judge Ullrich said that the settled purpose should be determined on
the basis of the matrix of fact envisaged at the time
the parties agreed to any
move and not on events after that time. In this case, the father’s
intention or purpose must be
ascertained from what he understood would occur in
New Zealand, including the children’s home base and school activities.
She went on to say:
[70] Where an agreement or order permits a child to be taken to another
jurisdiction for a defined period of time (even as long
as two or three years)
and the intention, or settled purpose, is that the child will be returned at the
end of that time, then the
habitual residence will not change because the
intention is for a temporary change in residence. If one parent reneges, the
child
will be returned to the original jurisdiction in terms of the
Convention.
[71] Where parents agree to a “shuttle arrangement”, the
determination is likely to be different because the intention
or settled purpose
is that the child will go backwards and forwards. Where one residence is not
dominant in terms of time spent,
cultural or familial connection, there are no
facts on which to prefer one jurisdiction over the other as an habitual
residence.
[72] In a “shuttle custody” case where there is an imbalance
of time between the two countries, the place of
habitual residence is
likely to become the place where the child spends the most time. Although, it
is possible to imagine
that a child of say, French parents, going to school in
New Zealand where one parent lives, and “holidaying” in France
with
the other parent, could retain an habitual residence in France because of the
predominant family, cultural and social connection
with France. Where time
spent, schooling, and cultural context is similar in each place, it becomes more
difficult to differentiate
the two situations. Where the parents are from two
different cultures and the children are in effect bicultural and have social
connections with each jurisdiction, those factors may become
neutral.
[56] Judge Ullrich then went on to consider the purpose of Mr and Mrs
Punter at the time of entry into the agreement. She said
that the settled
purpose of both parents was for an initial period of two years in New Zealand.
Both parents understood when they
entered the agreement that the children were
to live in New Zealand, go to kindergarten and school in New Zealand and spend
time
with their mother’s extended family and that they would maintain
contact with their father by telephone and relatively infrequent
visits. In
the event that the mother became unable to care for the children or died, the
children were, however, to be returned
to their father in Australia.
[57] Judge Ullrich noted that, after the children arrived in New Zealand, the mother was to continue as primary caregiver of the children and the language they were to speak remained English. She remarked that the similarity between the
cultures and the constant primary parent would suggest that a new habitual
residence could be acquired quickly. Notwithstanding this,
she considered that
the terms of the agreement meant that there was not a settled purpose that the
children would lose their habitual
residence in Australia on coming to New
Zealand. She referred, in particular, to the provision that, if the mother
became disabled
or died, the children were to be returned to
Australia.
[58] Judge Ullrich then went on to discuss whether the
children’s habitual residence had become New Zealand by
February 2004.
She commented that, if Mrs Punter had abided by the terms of the agreement, the
children’s connection to their
father and his life in Australia and their
own earlier life in Australia would have been more present and apparent for
them. However,
that sense of connection with Australia, even though it was the
place of former residence, was not, in her view, sufficient to override
an
extended period of day-to-day living in New Zealand where there is at least
equal familial, social and cultural connection.
[59] Judge Ullrich said that familiarity with a new country does not alter the habitual residence where a child is taken to another jurisdiction for a limited purpose such as an extended holiday or to accompany a parent who had a limited employment contract but in those situations the settled purpose is for a temporary change of residence only. In her view, the real point of difference in this case was the agreement for alternating periods of two years. If in such a situation each jurisdiction is compatible with the child’s culture or cultures and there is an equivalent family and social connection, then she said that the logical finding must be that there are serial habitual residences. She noted that the children have a family base in New Zealand and a strong cultural connection with this country. They have been attending school and have developed a social network. They have only had telephone contact with their father in Australia. She thus found that, by February
2004, the children had established an habitual residence in New
Zealand.
[60] As to the policy issues that had been raised by Mr Pidgeon, Judge Ullrich considered that the terms of the Hague Convention are unlikely to cover every situation where a child is taken from one country to another. She said that shuttle cases of this kind are relatively rare as is borne out by the small number of cases
internationally which deal with such arrangements. In her view, such
arrangements should not be encouraged as they are a parent-centred
rather than a
child-centred approach to parental disagreement. She did not consider that a
finding that shuttle cases would often
involve serial habitual residences would
defeat the object of the Convention as most removal situations would continue to
be covered.
[61] Judge Ullrich finished by saying that, as the children are
habitually resident in New Zealand, there would be no return
order and
Mrs Punter’s custody application could continue. She said that this
meant that, because that custody application
would be dealt with from the point
of view of the welfare of the children, there was a risk that the shuttle
custody arrangement
may not be enforced. She recognised that this may not be
seen as “fair” to the father but opined that it would at least
refocus the case on the best interests of the children rather than the rights of
the parents.
Goddard J’s decision
[62] Goddard J began her judgment by setting out the background to the
case, both factual and procedural. She noted that both
Blanchard J and
Glazebrook J, in the first Punter decision, had dealt with the question
of habitual residence by way of obiter comments. She then discussed Judge
Ullrich’s decision
and the fact that the Judge had applied the principles
set out by Glazebrook J.
[63] Goddard J considered that four aspects of Judge Ullrich’s
decision required review or comment. They were the assessment
of Mr and Mrs
Punter’s settled purpose, whether there could be a concept of serial
habitual residences for Hague Convention
purposes, whether intention as to
jurisdiction has any relevance to a determination of habitual residence and
whether New
Zealand had become the Punter children’s habitual
residence by 7 February 2004, so that the Family Court in Australia should
no
longer be the proper forum for determining custody issues. She discussed these
issues in turn.
[64] On the question of settled purpose, Goddard J considered
that Mr and
Mrs Punter’s subjective intent could be ascertained from the terms of the agreement
they entered into, as confirmed by their affidavits filed. Goddard J
noted that Mrs Punter had deposed that she had fully
intended to abide by the
agreement when she signed it. Thus Goddard J held that Mrs Punter’s
subjective intent was to return
the children to Australia at the end of
the two-year period. As to Mr Punter, Goddard J said that his clear
settled
purpose was that New Zealand would not be, for the periods the children
were to spend here, their habitual residence. His purpose
was that they reside
in New Zealand for two years and then be returned to Australia.
[65] In Goddard J’s view, the fact that Mr Punter immediately
applied for the return of the children when he learned
Mrs Punter was
applying for their sole custody in New Zealand shows he never tacitly
consented to a change in the children’s
habitual residence in the
Hague Convention sense. Goddard J also pointed to the evidence that Mrs
Punter has never evinced
a firm settled purpose of her own to remain in New
Zealand. Mrs Punter’s plans about her own future had, in Goddard
J’s
view, always been uncertain.
[66] Goddard J concluded that Mr and Mrs Punter’s intention had
been for a long term shared custody arrangement. To interpret
the agreement
otherwise was, in her view, not in accordance with the caselaw and the policy
behind the Hague Convention. In addition,
it carries the risk that no parent
will, in the future, enter into a shared custody arrangement that involves
moving to another jurisdiction
for part of the shared time.
[67] Goddard J went on to discuss one more matter relating to settled
purpose, that of deceit. She said that in this case there
were only two
possible scenarios. The first was that Mrs Punter conceded that Australia was
the children’s habitual residence
at the time she removed them and
intended to abide by her agreement to return them but that she subsequently
changed her mind and
sought unilaterally to change the children’s habitual
residence by seeking custody orders in New Zealand. The alternative
view was
that she did not enter into a truthful arrangement with Mr Punter at
the time but deceived him. Goddard J noted
that Judge Ullrich thought this may
well be the case when the Judge said:
[102] There is a strong implication in this case that when the mother signed the deed drafted by the father she had already formed the intention not to go
through with the “shuttle agreement”. She signalled that
intention within 6 months of her arrival in New Zealand by filing
her
application for custody in the New Zealand Family Court.
[68] Goddard J said that, in the event that Judge Ullrich was correct in
this assessment and Mrs Punter did not intend at the time
she entered into the
agreement to honour it, then the role of deceit in Hague Convention cases needed
to be considered, bearing in
mind that the Convention is a contract between
states. She said, referring to Isaac v Rice 1998 US Dist LEXIS 12602,
that, in cases of deceit, length of stay in a new country may be found to be of
little effect.
[69] Turning to the concept of serial habitual residences, Goddard J said
that the notion that shuttle custody arrangements necessarily
lead to serial
habitual residences is inherently flawed as it takes outside the jurisdiction of
the Hague Convention a whole class
of shared custody arrangements. In her view,
this is inconsistent with the purpose and scheme of the Hague Convention and the
aims
of that Convention as set out in art 1. She considered there to be a basic
philosophical difference between the approach in common
law jurisdictions
(as shown by the case of Bickerton v Bickerton No 91-006694 (Cal.
SC, 1991)) and that in Watson v Jamieson and Johnson v Johnson.
The former should be preferred as, in her view, the common law approach is that
there can only be one habitual residence for the
duration of any shared custody
arrangement. That habitual residence can only be altered by express or tacit
agreement of the parents
or by Court order.
[70] Turning to the question of intention as to jurisdiction, Goddard J held that such intention was relevant. Although Mr Punter may have been unaware of the Hague Convention, this did not disentitle him to its protection. Mr Punter understood his rights sufficiently to apply for custody in Australia and to alert the Commonwealth police to the possible wrongful removal of the children from Australia in breach of his parental rights. Goddard J saw no reason to depart from her finding in her first Punter decision that Mr Punter neither relinquished his parental responsibility under Australian law nor, by his actions, conceded jurisdiction to New Zealand.
[71] As to whether the children’s habitual residence had changed by
February
2004, Goddard J noted that Judge Ullrich had found that neither New Zealand
nor Australia was dominant in terms of time spent or cultural
or familial
connection. There were thus, in Goddard J’s view, no facts to prefer one
jurisdiction over another as the children’s
habitual residence. In
Goddard J’s view, the factors that Judge Ullrich identified did not
give New Zealand preference,
whereas there were numerous factors that gave
Australia priority.
[72] Goddard J noted that the children were born in Australia,
they have Australian citizenship, they were living in
Australia at the time the
agreement was made, the agreement was signed in Australia at a time when custody
proceedings were on foot
and the arrangement was for the children to spend equal
time in both jurisdictions. Further, Australia was conceded as the
children’s
country of habitual residence at the time they left Australia
and it was still conceded as such nine months after they had arrived
in New
Zealand. Goddard J presumably is referring to the fact that habitual residence
was conceded by Mrs Punter before the Family
Court in December 2002, although
Goddard J of course allowed that question to be re-opened on appeal – see
at [48] above.
[73] Goddard J concluded that the rational preference was that Australia
remained the Punter children's country of habitual residence
for Hague
Convention purposes as at 7 February 2004. She based that conclusion
on an assessment of Mr and Mrs Punter's
settled intention at the critical
time, on the basis of the defined and delimited nature of their shared custody
agreement, on the
equal familial and cultural connections with both Australia
and New Zealand, and on the additional features of birth and nationality.
In
the light of that conclusion, she determined that the proper forum to determine
any custody dispute must be Australia. Goddard
J accepted that, in exceptional
circumstances, the forum could be overturned by other overriding factual
considerations but not in
an ordinary shared custody case of this
nature.
Submissions on behalf of Mrs Punter
[74] Mr McKenzie QC, on behalf of Mrs Punter, submitted that Goddard J failed to treat the guidance provided by Blanchard and Glazebrook JJ in the first Punter
decision as binding directions on the principles that were to be followed in the determination of habitual residence. Alternatively, he submitted that Glazebrook J’s judgment is supported by SK v KP and should have been followed on that basis. In his submission, there are no grounds for this Court to depart from SK v KP in terms of the test set out in R v Chilton and Archbold CA333/04 and CA335/04 1 December
2005.
[75] Mr McKenzie submitted further that this Court should adopt the
position set out in the shuttle custody cases, including
the recent
Canadian case of Wilson v Huntley (2005) 13 RFL (6th) 435 (Ont SCJ).
In Mr McKenzie’s submission, where parties have agreed that there are to
be alternating
long periods of residence in each jurisdiction, the most
reasonable inference is that the parties have a settled purpose that there
be
serial habitual residences. In his submission, even in cases where residence
is intended to be for a one-off limited, defined
period followed by a return to
an existing habitual residence, this does not lead automatically to a finding
that habitual residence
has not moved to the new jurisdiction. Whether there
has been a change in habitual residence depends, in his submission, on all
the
circumstances of the case.
[76] It was further submitted that the approach to habitual residence in
shuttle custody cases is compatible with the purpose
and scheme of the Hague
Convention and Goddard J was wrong to hold otherwise. Mr McKenzie pointed to
the statement in SK v KP that there can be tension between the two aims
of the Convention – to deter retention and to ensure that a child’s
future
is determined in the jurisdiction where the child has the closest links.
In his submission, it is necessary to avoid a parent-centred
approach that
emphasises enforcing parental agreements as against determining the underlying
reality of the situation – see
McGrath J’s comments in SK v KP
at [22].
[77] Finally, Mr Foster, who argued this part of the appeal on behalf of Mrs Punter, submitted that there was no proper basis for Goddard J to reject the finding made by Judge Ullrich that the relevant factual matrix of the case favoured New Zealand as the habitual residence of the children as at 7 February 2004.
Submissions on behalf of Mr Punter
[78] Mr Pidgeon QC, on behalf of the New Zealand Central Authority,
submitted first that the comments in the judgments of Blanchard
and Glazebrook
JJ on habitual residence in the first Punter decision were obiter and
therefore not binding on Goddard J. In addition, he submitted that Goddard J
was correct not to follow them.
To the extent that the principles set out by
Glazebrook J were confirmed by this Court in SK v KP that case should, in
his submission, be overruled.
[79] Mr Pidgeon submitted that the traditional approach adopted in
England, New Zealand and Australia is what Schuz dubs the parental
rights model
whereby both parents have the right to determine where a child should live and
neither may change the child’s
place of habitual residence without
the consent of the other – see Schuz “Habitual residence
of children
under the Hague Child Abduction Convention - theory and
practice” (2001) 13 CFLQ 1 at 10. In Mr Pidgeon’s
submission, it is not possible for one parent unilaterally to change the
habitual residence of a child and that is what Mrs Punter
is attempting to
do.
[80] Mr Pidgeon submitted that any parental agreement has to be for an
indefinite stay in a jurisdiction for habitual residence
to change. In his
submission, where there is parental agreement for a delimited stay in another
jurisdiction (however long that
may be), the habitual residence of a child can
never change, unless perhaps there is a very lengthy period of actual residence
in
the new jurisdiction (say five to ten years).
[81] In Mr Pidgeon’s submission, prior to the first Punter decision of this Court, the novel argument that in some way shuttle cases are different from other Hague Convention cases has only been applied in Scotland (Watson v Jamieson) and Sweden (Johnson v Johnson), essentially on what he submitted are Roman or civil law rather than common law principles. He noted that the decision is inconsistent with Bickerton v Bickerton. In Mr Pidgeon’s submission, it is important that New Zealand keeps in line with the common law jurisdictions with which we have the most to do.
[82] Mr Pidgeon accepted that the leading text on the Hague
Convention, Beaumont and McEleavy, approves the approach
in Watson v Jamieson
and disapproves the case of In re S (Minors) (Abduction: Wrongful
Retention) [1994] Fam 70 (EWHC) but submitted that it is an idiosyncratic
work, biased towards Scottish decisions over English ones. In addition, Mr
Pidgeon submitted
that any decision that habitual residence has changed in this
case does not accord with the policy behind the Hague Convention.
In his
submission, it is important to give effect to arrangements between the parties
in determining habitual residence.
[83] Finally in Mr Pidgeon’s submission, Judge Ullrich failed
to give proper weight to the fact that Mrs Punter
does not have a settled
purpose to remain in New Zealand when she was assessing the factual
matrix.
Issues
[84] The issues arising from the submissions are:
(a) Was the first Punter decision binding on Goddard J? (b) Does SK v KP apply?
(c) Should there be a parent-centred approach?
(d) Is it possible for parental purpose for a delimited stay in
another jurisdiction to change habitual residence?
(e) Are shuttle custody cases in a different category?
(f) Is there a difference between common law and civil law jurisdictions? (g) Is this a case of unilateral change of purpose on Mrs Punter’s part?
(h) Would a decision in Mrs Punter’s favour be contrary to the policy
of the Hague Convention?
(i) If SK v KP is applicable, should it be overruled?
(j) Was Judge Ullrich’s decision correct (both in principle and factually)? (k) Should Goddard J have overturned Judge Ullrich’s decision?
Status of first Punter decision
[85] The first issue is whether the principles set out by Blanchard and
Glazebrook JJ in the first Punter case were binding directions
to the Family Court, as Mr McKenzie submitted, or whether they were
obiter comments,
which was Mr Pidgeon’s position.
[86] It is clear that the comments were obiter. This is the reason that
Blanchard J’s comments were not couched in definitive
terms. They were
for guidance only as the question of habitual residence, being one of fact, was
in his view not properly before
the Court. It is true that, if Glazebrook
J’s view that there had been errors of law in Goddard J’s
determination of
the question of habitual residence had prevailed, then the
comments in her judgment would have been binding directions to
the Family
Court. Her views on that issue did not prevail.
Does SK v KP apply?
[87] The status of the first Punter decision is, however, beside
the point. This is because the principles set out by Glazebrook J in that
decision were summarised in
SK v KP at [71] – [84]. That summary
was explicitly approved by McGrath J in his judgment in that case at [19] and by
William Young
J in his judgment at [107], although William Young J took a
different view of the application of the principles to the facts in that
case.
SK v KP (which was released after Judge Ullrich’s decision) was
binding on Goddard J but unfortunately does not appear to have been
referred to
her.
[88] In SK v KP, the inquiry into habitual residence was held, at [80], to be a broad factual inquiry. Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled
purpose of the parents) is important but not necessarily decisive. It
should not in itself override what McGrath J called,
at [22], the
underlying reality of the connection between the child and the particular
state:
[22] There is also support for the proposition that the Court should be
slow to infer a change in habitual residence in the absence
of shared parental
attempt to bring it about, this reflecting the weight attached to parental
intention under the Convention:
Zenel v Haddow 1993 SLT 975 at p 979. The
decision of the Court on habitual residence must, however, in the end always
reflect the underlying reality of the
connection between the child and the
particular state. Obviously there will be circumstances in which having been
considered the
facts indicate to the Court that all the circumstances of the
case rather indicate this underlying reality.
[89] Application of the above test was essential to the decision in SK
v KP. The purpose of both parents in that case, at the time the child was
brought to New Zealand, was that he and his mother would stay
for a defined
period for the purpose of the mother having the support of her family during a
difficult pregnancy. There was no agreement
for an indefinite stay, either at
the time of coming to New Zealand or later, and no lengthy actual period of
residence. The length
of the agreed period in SK v KP was a matter of
dispute (not resolved in either the Family Court or the High Court), although
even on the mother’s version,
the agreed stay was not more than six
months. The actual length of stay in New Zealand, at the time of retention, was
only some
ten months. Despite this, the decision of the Family and High Courts
that habitual residence in the United States had been lost
by the time of the
child’s retention by the mother was upheld by this Court. This was on
the basis of the whole factual matrix,
including the child’s connections
with New Zealand, the total length of time spent at different periods in New
Zealand and
the relative weakness of the ties with the United
States.
[90] It is clear that, if we (as Goddard J did) were to uphold Mr Pidgeon’s submissions that the parental rights model is the correct approach, that parental agreement for an indefinite stay in a state is required before there can be a change in habitual residence and that the policy of the Convention requires parental agreements to be enforced, we would have to overrule SK v KP.
Should there be a parent-centred approach?
[91] Mr Pidgeon’s submission was that the approach (at least in
common law jurisdictions) has traditionally been to use
parental purpose to
determine the habitual residence of a child. He submitted that we should not
depart from that approach which
Schuz calls (in her article referred to at [79]
above) the parental rights model. The other models Schuz discusses are what she
calls
the dependency model and the child-centred or independent
model.
[92] Under the dependency model, the habitual residence of the child
follows that of the parents. Where the parents are living
apart, the habitual
residence is that of the parent with whom the child has their “home”
at the relevant time. In this
regard, we refer to Re A (Wardship:
Jurisdiction) [1995] 1 FLR 767 at [29] where Hale J (as she then was) said
that the concept of a home, although not necessarily identical to that habitual
residence,
was a very similar concept. We agree that this is a useful
analogy.
[93] Under the child-centred or independent model, children are treated as
autonomous individuals, the quality of whose residence
in a particular country
does not necessarily depend on the quality of their parents’ residence in
that country. Rather, the
determination of habitual residence depends on the
child’s connections with the country in question. A proper application
of
the child-centred model is to let the facts speak for themselves. Schuz does
not see parental intentions as entirely irrelevant
in this model but says that
they should only be taken into account insofar as they affect the
child.
[94] Although acknowledging that the parental rights model has been a model widely used by the courts, Schuz does not favour it. In her view, it diverts the courts from a proper inquiry into the factual situation of the child, it does little to define the connection between the child and the particular state, it is inconsistent with modern child-centred decision-making with regard to the parent-child relationship and it has a number of practical difficulties such as that of ascertaining parental intention. In her view, the child-centred or independent model solves all these difficulties and is thus the correct approach. Schuz, however, has no major objections to the
dependency model as long as it is combined with a factual inquiry as to the
whereabouts of the child’s home.
[95] Schuz acknowledges the possibility of combining the parental
rights and independent or child-centred models in a hybrid
model. Under this
model, habitual residence may be acquired either by residence for an appreciable
period (ie objective factors)
or by residence for a shorter period of
time accompanied by a settled purpose. The phrase “residence for an
appreciable
period” should, in her view, be interpreted in accordance with
the objectives of the Convention. What is required is sufficient
time for, in
the light of the respective connections with the relevant countries, the new
country to have become the forum conveniens
and/or to have created a situation
where removal from that country is likely to cause the child the sort of harm
usually associated
with intentional child abductions.
[96] It is true, as Schuz acknowledges, that the parental rights model has been seen as important in determining habitual residence. This stems from the classic statement of principle by Lord Brandon of Oakbrook in Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 (HL) at 578 – 9, although Lord Brandon put forward a two-pronged test. He said that the acquisition of habitual residence in a state requires both a settled purpose and residence for an appreciable period. It is thus important to note that, under the test set out by Lord Brandon, parental purpose is not determinative. Residence for an appreciable period is also required – see also the House of Lords decision in Nessa v Chief Adjudication Officer [1999] 4 All ER
677 at 682 per Lord Slynn of Hadley.
[97] Where a young child is involved, the relevant purpose is generally considered to be that of the parents, although regard is had not only to the subjective intent of the parents but also to what have been called the “objective manifestations of that intent” – see Armiliato v Zaric-Armiliato 169 F Supp 2d 230 (SDNY, 2001) at [47]. This is because Hague Convention proceedings are not the best vehicle for resolving conflicts as to subjective intent, given that such proceedings are required to be resolved quickly – see s 107 of the Care of Children Act quoted at [29] above. They will also often of necessity take place in the absence of one of the parents and cross-examination is not usual – see, for example, Re F (A Minor) (Child Abduction)
[1992] 1 FLR 548 (EWCA) at 552 and Ryding v Turvey [1998] NZFLR 313
(FC) at
321.
[98] The child-centred approach has, however, been taken in some United States decisions - see for example Friedrich v Friedrich 983 F Supp 2d 1396 (6th Cir,
1993) at 1401 – 2, and Feder v Evans-Feder where the Court of
Appeals for the
Third Circuit said (at 224):
... a child’s habitual residence is the place where he or she has been
physically present for an amount of time sufficient for
acclimatization and
which has a “degree of settled purpose” from the child’s
perspective. We further believe that
a determination of whether any particular
place satisfies this standard must focus on the child and consists of an
analysis of the
child’s circumstances in that place and the
parents’ present, shared intentions regarding their child’s
presence there.
[99] The child-centred approach has not been accepted in all circuits of
the United States Court of Appeals. In Mozes, the Ninth Circuit adopted
a hybrid model but not quite in the form suggested by Schuz as it placed a
strong emphasis placed on the
settled intention of the parents to abandon the
previous habitual residence. It was recognised in Mozes that the
habitual residence of a child can change despite the absence of such settled
parental purpose but the Court considered
that this conclusion should be
reached with caution – see at [144] below. In an addendum to her article
written after the
Mozes decision, Schuz, while agreeing with the result
reached in Mozes, said that a proper application of the independent or
child-centred model would have achieved the same result. We agree with this
comment.
[100] The test in Mozes has since been applied in Holder v Holder [2004] USCA9 797; 392 F3d 1009 (9th Cir, 2004), Ruiz v Tenorio [2004] USCA11 343; 392 F3d 1247 (11th Cir, 2004) and Gitter v Gitter
[2005] USCA2 3; 396 F3d 124 (2nd Cir, 2005), albeit in at least one of those cases in a manner that does not altogether fit easily into the principles set out in Mozes – see below at [131]
- [134]. Other circuits of the United States Court of Appeals have, however, maintained the child-centred approach. For example, Friedrich and Feder v Evans- Feder were referred to with approval in Delvoye v Lee [2003] USCA3 118; 329 F 3d 330 (3rd Cir, 2003). We note that the petition for a writ of certiorari in that case was denied by the United States Supreme Court in 2003 US LEXIS 7737 (US, Oct 20, 2003).
[101] The child-centred test was also used in Silverman v Silverman.
The Court said (at 898 – 9):
The court should have looked at the habitual residence of the Silverman
children at the time Julie removed them from Israel, keeping
in mind that they
could only have one habitual residence. The court should have determined the
degree of settled purpose from the
children’s perspective, including the
family’s change in geography along with their personal possessions and
pets, the
passage of time, the family abandoning its prior residence and selling
the house, the application for and securing of benefits only
available to
Israeli immigrants, the children’s enrollment in school, and, to some
degree, both parents’ intentions at
the time of the move to Israel. Fairly
assessing these facts, there is only one acceptable legal conclusion regarding
the children’s
habitual residence: they were habitual residents of
Israel.
[102] In Whiting v Krassner [2004] USCA3 272; 391 F3d 540 (3rd Cir, 2004)
the Third Circuit modified its stance to a degree post Mozes by
accepting the importance of parental purpose in determining the habitual
residence of a very young child. However, it still maintained
the
child-centred approach for older children. The Court considered it necessary in
the case of an older child to pay more regard
to acclimatisation in order to
prevent the child’s “environmental normalcy” from being
disrupted. The Court said
(at 550 – 1):
In recognizing acclimatization as an element of habitual residency in
Feder, we were attempting to develop a definition of habitual
residence which would comport with one of the main objectives of The
Hague
Convention – i.e., restoring the child to the status quo before the
abduction. We recognize that this goal is crucial
when the child involved is
not only cognizant of his or her surroundings, but also of an age at which it is
able to develop a certain
routine and acquire a sense of environmental normalcy.
A four-year-old child, such as Evan Feder, certainly has this ability. A
child
of such age is not only aware of those around him, but is able to form
meaningful connections with the people and places he
encounters each day. A
very young child, such as Christina [she was about a year old], does not have
such capability. Therefore,
her degree of acclimatization in Canada is not
nearly as important to our determination of habitual residence as are her
parents’
shared intentions as to where she would live during her formative
years.
[103] The Third Circuit in Whiting v Krassner in effect applied a modified child-centred approach, with parental purpose as the dominant consideration for very young children but not to the exclusion of other factors. With older children, while parental purpose is taken into account, acclimatisation remains as the primary focus.
[104] This Court in SK v KP applied a test that can be seen as
taking a middle course between Mozes and the child-centred approach
in Feder v Evans-Feder. Under the test in SK v KP, all relevant
facts are weighed, with the settled purpose of the parents as an important
factor but not as important as it was seen
to be by the Mozes Court.
In addition, unlike in Mozes, the concentration was on parental
purpose as to the quality and length of residence in the new state rather than
as to abandonment
of the previous habitual residence.
[105] A similar approach was taken by the House of Lords (although in
assessing habitual residence in the context of income support)
in Nessa
per Lord Slynn of Hadley. The House of Lords confirmed that settled purpose
as to future residence was not sufficient to establish
habitual residence as
residence for an appreciable period was also required. As to the latter, a
consideration of the broad factual
matrix was required. Lord Slynn said (at 682
– 3):
I do not consider that when he spoke of residence for an appreciable period,
Lord Brandon meant more than this. It is a question
of fact to be decided on
the date when the determination has to be made on the circumstances of each case
whether and when that
habitual residence had been established. Bringing
possessions, doing everything necessary to establish residence before coming,
having a right of abode, seeking to bring family, “durable ties”
with the country of residence or intended residence,
and many other factors have
to be taken into account.
The requisite period is not a fixed period. It may be longer where there are
doubts. It may be short (as the House accepted in Re S (a minor) (custody:
habitual residence) [1997] UKHL 32; [1997] 4 All ER 251 at 257[1997] UKHL 32; , [1998] AC 750 at 763 in my
speech; and Re AF (a minor) (child abduction) [1992] 1 FCR 269 at 277
where Butler-Sloss LJ said ‘a month can be ... an appreciable period of
time’).
There may indeed be special cases where the person concerned is
not coming here for the first time, but is resuming an
habitual residence
previously had (Lewis v Lewis [1956] 1 All ER 375, [1956] 1 WLR 200 and
Swaddling v Adjudication Officer Case C-90/97 [1999] All ER (EC)
217).
[106] In our view, the SK v KP formulation of the test accords appropriate significance to parental purpose in line with Lord Brandon’s statement of principle. At the same time, by requiring all of the relevant factual circumstances to be weighed alongside the consideration of settled purpose, the test in SK v KP accords with the need to ensure that the concept of habitual residence remains a factual one not limited by presumptions or presuppositions - see Dicey and Morris (at 152). As
pointed out by Schuz, the pure parental rights model (as postulated by Mr
Pidgeon) does not meet this aim. We also endorse
Schuz’s other
comments on that model - see at [94] above. We also prefer the SK v KP
formulation to that in Mozes, where, in our view, the Court put too
much emphasis on parental purpose, thus obscuring the factual nature of the
inquiry. The
SK v KP formulation also accords with what is said in
Dicey and Morris. The authors (at 150) say that the element of settled
purpose is not necessarily determinative, and that the better view is that
evidence of intention may be important in particular cases, for
example in establishing habituation when the actual period
or periods of
residence have been short.
[107] We do not consider that the caselaw in other common law
jurisdictions mandates the parental rights approach. Indeed,
the United States
Court of Appeals in Mozes took a hybrid rather than a parental
rights approach, and other circuits continue to take a child-centred
approach with
much less emphasis on parental purpose than was taken in
Mozes – see the discussion at [101] – [103] above. The
Permanent Bureau on its International Child Abduction Database (INCADAT)
website
(http://www.incadat.com/index.cfm (last
accessed 28 May 2006)) notes in its commentary on SK v KP that the
Court’s approach in SK v KP, although it may not reflect the
heightened concentration on parental purpose by the United States circuit courts
in Mozes, Holder, Ruiz v Tenorio and Gitter (the
commentator appears to have overlooked Whiting v Krassner and
Silverman), mirrors the general position adopted in other
jurisdictions. We also consider that strong concentration on parental
purpose can, contrary to the purpose of the Convention, lead to the removal of a
child from what has become its familiar environment
(as arguably happened in
Holder and Ruiz v Tenorio discussed at [131] – [133] below)
or the child’s return to an unfamiliar environment (as arguably happened
in Re R (Abduction: Habitual Residence) [2004] 1 FLR 216 (EWHC) discussed
at [137] - [139] below).
[108] For all the above reasons, we reject Mr Pidgeon’s submission that the parental rights test is the appropriate test.
Parental purpose of delimited stay
[109] Mr Pidgeon submitted that the habitual residence of a child can only
change if there is parental agreement for an indefinite
stay in a state and that
SK v KP was wrong to hold otherwise. We do not accept this submission.
In our view, this confuses the concept of domicile with that of
habitual
residence. In addition, it is contrary to the test promulgated by Lord Scarman
in R v Barnet LBC, ex p Shah [1983] 2 AC 309, which has commonly been
used in Hague Convention cases. It is also contrary to the caselaw on delimited
stays. Further, we do
not consider that the cases referred to by Mr Pidgeon
support his proposition.
Domicile and habitual residence
[110] Mr Pidgeon’s proposed definition of habitual residence with its
requirement for parental agreement for an indefinite
stay effectively (and
wrongly) equates that concept with that of domicile. The law of domicile in New
Zealand is now governed by
the Domicile Act 1976, s 9 of which provides that a
person capable of having an independent domicile acquires a new domicile in a
country if he or she is in a country and intends to live there indefinitely.
Under s 6, children cannot have an independent domicile
until they are 16.
Their domicile is that of the father if the parents are together and that of the
parent with whom they have
their home if the parents are separated. See also
Laws of New Zealand “Conflict of Laws: Jurisdiction and Foreign
Judgments” at paras 81 – 89.
[111] The concept of habitual residence was, however, meant to be different from that of domicile. It was chosen for the Hague Convention over nationality and domicile to reflect the desire for the determination of forum to be based on a largely factual, rather than legal, inquiry. Beaumont and McEleavy state (at 89) that the strength of habitual residence in the context of family law is derived from the flexibility it has to respond to the demands of a modern, mobile society, a characteristic which neither domicile nor nationality can provide.
[112] Leith “International Child Abduction: Different Approaches
to Habitual
Residence” (1999) 3 BFLJ 89 makes a similar point (at 90):
Habitual residence, like domicile or nationality, is a connecting factor that
ties a person to a particular country. Unlike domicile,
it is a matter of fact
to be determined from a general view of the evidence without an in-depth search
for the person’s intentions.
Unlike nationality, it is not dependent on
the formality of citizenship or the holding of a passport in that
country.
The term “residence” is being increasingly used as a connecting
factor to avoid the technical difficulties that have evolved
with the law of
domicile. It implies “something more than mere physical presence and
something less than domicile”
[Petition of Castrinakis (1959)
179 F Supp. 444, 445 (D Mary)].
[113] Equally, Adderson v Adderson (1987) 36 DLR
(4th) 631 (Alta CA) at
633 - 4 stated:
While “domicile” is concerned with whether there is a future
intention to live elsewhere, “habitual residence”
involves only a
present intention of residence. There is a weaker animus ... A number of text
writers have ... placed “habitual
residence” somewhere between
“residence” and “domicile” in the tests necessary to
establish it. Evidence
of intention does not have the importance it has in
tests for “domicile” but may be a factor in some cases.
[114] See also Anton “The Hague Convention on International Child
Abduction” (1981) 30 ICLQ 537 at 544, Castel Canadian Conflict of Laws
(3ed 1994) at 103 and the comments by the United States Court of
Appeals for the Eighth Circuit in Silverman v Silverman at 898,
those in Mozes at 1071, those of Sir John Balcolmbe in Re KM (a
minor) (habitual residence) [1996] 2 FCR 333 (CA) at 342 quoted with
approval by the Court of Appeal in Al Habtoor v Fotheringham [2001] 1 FLR
951 at [40], and Munby J’s comments in Re R (Abduction Habitual
Residence) at [41].
Lord Scarman’s definition
[115] Mr Pidgeon’s submission as to the need for a parental
purpose for an indefinite stay also fails to take
account of Lord
Scarman’s comments in Shah. Lord Scarman said (at 343) in that
case:
I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.
[116] Lord Scarman went on to articulate the reasons a person may have for
settling on a place as a regular abode. He said (at
344):
And there must be a degree of settled purpose. The purpose may be one; or
there may be several. It may be specific or general.
All that the law requires
is that there is a settled purpose. This is not to say that the
“propositus” intends to stay
where he is indefinitely; indeed his
purpose, while settled, may be for a limited period. Education, business or
profession, employment,
health, family, or merely love of the place
spring to mind as common reasons for a choice of regular abode. And there
may well be many others. All that is necessary is that the purpose of living
where one does has a sufficient degree of continuity
to be properly described as
settled.
[117] The settled purpose referred to by Lord Scarman in Shah
therefore does not have to be a settled purpose to live in a place forever
but can be a purpose of residence for a limited period
as long as there is
intended to be a sufficient degree of continuity for it to be properly treated
as settled. It is thus a different
and lesser concept than domicile which
requires an intention to reside indefinitely – see at [110]
above.
[118] As Schuz points out, at 4 of the article referred to at [79], Lord Scarman’s test in Shah has often been applied in Hague Convention cases, even though it related to the words “ordinarily resident” rather than “habitually resident”. For example, it was applied (although not attributed) by Waite J in Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 (EWHC) at 995, by the Court of Appeal of England and Wales in Re M (Minors) (Residence Order: Jurisdiction) at 499 and in M v M (Abduction: England and Scotland) [1997] 2 FLR 263, by the Ontario Court of Appeal in
Korutowska-Wooff v Wooff (2004) 242 DLR (4th) 385 (Ont CA)
at [8], and by the
Inner House of the Court of Session in Cameron v Cameron [1995] ScotCS CSIH_3; [1996] SC 17
(IH SC) at
20 and Dickson v Dickson [1990] SCLR 692 (IH SC) at 703. Waite J’s comments were quoted in the Full Court of the Australian Family Court in Cooper v Casey (1995) FLC 92 - 575). Lord Scarman’s comments were also approved by the United States Court of Appeals in Feder v Evans-Feder, Silverman v Silverman and Whiting v Krasner, although the quote was attributed to Waite J in Re Bates EWHC No. CA 122/89 23 February 1989. The Shah comments were also referred to with approval in SK v KP at [77].
[119] See also (in a discussion of habitual residence in other contexts) the
endorsement of Shah as being applicable to the ascertainment of habitual
residence by the Court of Appeal of England and Wales in Al Habtoor v
Fotheringham at [23] – [24]. The Court of Appeal said in that
case habitual residence may be acquired despite the fact that
the purpose of
the move was intended to be fulfilled within a comparatively short duration or
the move was only on a trial basis.
It referred, as authority for that
proposition, to the cases Moran v Moran, along with Re F (A Minor)
(Child Abduction) and Re B (minors) (Hague Convention (No. 2)) [1994]
1 FCR 394. The Shah test was also used by the House of Lords in the
cases of Nessa (per Lord Slynn) at 682 and Mark v Mark
[2005] UKHL 42; [2006] 1 AC 98 (HL) per Baroness Hale of Richmond at 110.
[120] Lord Scarman’s test is referred to as the appropriate test in the
Hague Convention context by Beaumont and McEleavy at
101 and Brookers Family
Law: Child Law (Looseleaf) at CC95.07.01(3), and in the conflict of laws
context by Dicey & Morris at 152 and North and Fawcett Chesire and
North’s Private International Law (13ed 1999) at 164.
[121] The question remains as to whether there is a difference between the
concepts of ordinary residence (which is what Lord Scarman
was dealing with) and
habitual residence. The House of Lords stated in Mark v Mark at 112 that
the concepts are interchangeable. The same was said in Friedrich at
1401 and Beaumont and McEleavy refer to a number of cases that have reaffirmed
the parallelism between the two concepts –
see fn 81 at 101. The House of
Lords in Nessa had earlier (per Lord Slynn of Hadley at 681) said that
the terms may not always be synonymous but that “there is a common core
of
meaning which makes it relevant to consider what has been said in cases dealing
with both ordinary and habitual residence”.
[122] The Court in Mozes said, although approving the comments in Shah and noting that a habitual residence does not have to be where there is an intention to “leave your bones”, said that “settled purpose” for Hague Convention cases requires something more than for cases involving a person’s ordinary residence. The Court there held, at 1081, that the question is not simply whether the child’s life in the new country shows some “minimal ‘degree of settled purpose’”, but whether the child’s
relative attachments to the two countries have changed to the point where
requiring return to the original forum would now be tantamount
to taking the
child “out of the family and social environment in which its life has
developed”.
[123] We accept that there may well be a difference between the two
concepts but one that is not quite so extreme as portrayed in
Mozes. Any
difference would be in the quality of residence and at the margins – see
the comments in Dicey and Morris at 150 – 2. Despite there perhaps
being a difference between the two concepts at the margins, the importance
accorded Lord
Scarman’s comments in the caselaw means that Mr
Pidgeon’s submission that there must be the intention to stay in the
new
state indefinitely is unsustainable.
Delimited period cases
[124] We also consider Mr Pidgeon’s contention to be contrary to the
caselaw. As discussed in Glazebrook J’s judgment
in the first Punter
decision at [88] – [107] some cases where there is parental agreement
for a stay of a delimited nature in another jurisdiction
have led to a finding
that there has been no change of habitual residence but others have not.
Although the decision in each case
results from an examination of the particular
factual circumstances (combined often with some variations in the test applied),
some
themes can be discerned.
[125] Where the agreed period in the new state is to be under a year and the purpose temporary, such as for holidays, education, visiting relatives or sabbaticals, and the ties to the existing habitual residence are strong, the courts have normally found that the existing habitual residence subsists. See for example B v S (1994)
12 FRNZ 473 (DC) (six month holiday with non-custodial parent), Re A (Abduction: Habitual Residence) [1998] 1 FLR 497 (EWHC) (six week visit to enable the father and extended family to see the child), De Lewinski v Department of Community Services (1997) FLC 92 – 737 (six month stay to visit the mother’s family), Morris v Morris 55 F Supp 2d 1156 (D Colo, 1999) (father awarded ten month sabbatical leave) and Brennan v Cibault 227 AD2d 965 (1996) (six week visit to the United States extended to six months when the parents separated).
[126] Where the period is two years or over and it is not so clear that the purpose of the stay was “temporary”, such as where it was to spend a lengthy period with a parent in his or her habitual residence or for a long offshore work or military posting, the courts have been much quicker to find a change in a child’s habitual residence, particularly if the ties to the former habitual residence are weak. See, for example, Re A and others (minors) (abduction: habitual residence) [1996] 1 All ER
24 (military posting to Iceland for three years), Korutowska-Wooff v Wooff (mother and children to remain in Poland when father returned to Canada at the end of his seven year diplomatic posting to Poland), Whiting v Krassner (two year stay – see below at [140] – [141] for fuller discussion), Shalit v Coppe [1999] USCA9 530; 182 F3d 1124 (9th Cir,
1999) (three year stay with father while the mother attended law school),
Toren v Toren 26 F Supp 2d 240 (D Mass, 1998) (children to live in United
States with mother for a period of up to four years), Watson v Jamieson
(children to reside alternately with each parent for two-year periods) and
Johnson v Johnson (child to reside alternately with mother for two years
then father for one year).
[127] Where the period is between a year and two years, decisions have gone either way. For example, in Mozes (see at [143] below) where the stay in the United States was 15 months, the decision was that habitual residence remained in Israel. See also S v M [1999] NZFLR 337 (13 month stay with the father in order for the mother to have a break), Re A (Wardship: Jurisdiction) (child sent to grandparents in Pakistan for educational purposes for a period of one to two years where both parents’ habitual residence remained in England), Re S (Minors) (Abduction: Wrongful Retention) (one year stay in England while parents undertook research postings), ØLK HC Eastern Division Denmark 5 April 2002, (INCADAT citation HC/E/DK
520) (agreed stay with the father for one year while mother was hospitalised
and treated for an illness).
[128] By contrast, in Re S (A Minor) (Abduction) [1991] 2 FLR 1 (EWCA) there was a finding of a change in habitual residence. In that case, the parents separated in January 1982. They had joint rights of custody, with the mother initially having the physical care of the child. The mother agreed that the child would live with her father in the United States for the 1988 – 1989 school year. On 5 October 1988, the mother took the child to Canada without the father’s knowledge. She subsequently
travelled to England. The Court of Appeal of England and Wales held, (at 16 – 17), that the child was habitually resident in the United States, as it was intended that she would reside with the father for the whole of the school year. In the Court’s view, this was more than a sufficiently substantial period of time to effect the transfer of habitual residence. See also Moran v Moran 1997 SLT 541 (the mother and child came to Scotland with the agreement of the father for a year with a view to a decision about their future) and Re M (Minors) (Residence Order: Jurisdiction) at
501 (per Balcombe LJ with whom Steyn LJ agreed) and at 503 (per Hoffman J).
In that case a period of at least a year in Scotland
with the grandparents was
stated to have changed the children’s habitual residence.
[129] Where there have been frequent moves (even for relatively short periods) courts have, in some cases, held there to be no habitual residence – see for example F v A 125 Cal App 4th 1417 (2005). Alternatively, they have made a finding of serial habitual residences - see Re V (Abduction: Habitual Residence) [1995] 2 FLR
1992 (EWHC), approved in Re A (Abduction: Habitual Residence), Wilson v Huntley and Zuker v Andrews (1998) 2 F Supp 2d 134 (D Mass), a case confirmed on appeal by the Court of Appeals for the First Circuit in Zuker v Andrews No. 98-1622
9 April 1999. Whether there are serial habitual residences is of course a
question of fact in each individual case.
[130] The themes set out in [125] – [126] above are not rigid
categorisations. This is not surprising as the test is
a factual one,
dependent on the combination of circumstances in the particular case.
There have been cases, particularly
after Mozes, where stays that
might have previously been thought long term have led to a conclusion that
habitual residence has not changed (see
below at [131] - [134]). Equally,
however, there have been cases where stays of less than a year have led to a
finding of a change
in habitual residence (see below at [136] -
[139]).
[131] Holder v Holder [2004] USCA9 797; 392 F 3d 1009 (9th Cir, 2004) is the first in the series of post Mozes cases. That case concerned the habitual residence of two boys aged six and one. The father was in the military and the family had led a peripatetic existence moving from country to country. The older child had spent his first year in the United States, then between 1995 and 1997 in Japan, followed by two years in
California until joining the father in a four year posting to Germany in
September
1999. After some eight months in Germany, the mother returned to the United
States. Although acknowledging that it was a close
decision, the Ninth Circuit
upheld the District Court finding that habitual residence had not changed on the
basis that the mother
did not intend to abandon the United States as the
family’s habitual residence and that the eight months in Germany were not
enough to overcome the lack of shared parental intent. We remark that this
decision seems at odds with some of the comments in Mozes (see at [144]
below) although it purportedly relies on the Mozes test. Contrast the
decision of Cazalet J in Re A and others (minors) (abduction: habitual
residence), and that in Toren, decisions referred to with
approval in Mozes.
[132] In the case of Ruiz v Tenorio the family, after seven years in
the United States where the children were born, moved to Mexico (the father was
Mexican) in an attempt
to save the marriage which had never been happy. The
wife had been told the move was for a trial period and that the family would
return if it did not work out. The family in the end remained in Mexico for two
years and ten months. The District Court made findings
of fact that the couple
had moved to Mexico in an attempt to save their marriage, with the idea of
returning if it did not work,
that within six months things were not working
out, that the husband started to drink in excess, that even the husband was
having
second thoughts about staying, that the wife’s return to Mexico in
2002 was only an effort to save the marriage and that the
two never had a
shared intent to make Mexico the habitual residence of their children,
but rather that the family was
in limbo during that time. The District Court
concluded that the husband did not prove that the habitual residence for the
children
was in Mexico.
[133] The United States Court of Appeals for the Eleventh Circuit held that the case came into the difficult third category of cases referred to by Mozes where the petitioning parent had earlier consented to let the child stay abroad for a period of ambiguous duration. The Court said that it could not conclude that the District Court’s finding was clearly erroneous, given the evidence of the conditional nature of the move, the ties the wife retained with the United States, the fact that the husband also maintained contacts with the United States and that his intention in
moving to Mexico was likewise ambiguous. Although acknowledging that the
decision was a close one, the Court also held that the
period of actual
residence (albeit long) was not sufficient to overcome the lack of shared
parental intent.
[134] The final case in this series is Gitter v Gitter. In that
case the parents were both Israeli citizens although the mother had not lived
there since she was three months old. Shortly
after the birth of their son the
father proposed that the family move to Israel. The mother was reluctant but
was persuaded to go
for a trial period of one year. The father closed the
United States bank accounts, sold the car and placed their furniture in storage.
Once in Israel the father sold or gave the family’s possessions to his
wife’s sister. The child was enrolled in day
care in Israel. After about
eleven months in Israel, the mother went to New York to visit her sister and
expressed a desire to
remain there. She was persuaded to return for
a further six-month period, at the end of which she returned to the United
States with the child, purportedly for a vacation, and refused to return. The
District Court held that the child’s habitual
residence remained in the
United States and this finding was largely upheld on appeal, although the case
was sent back for the District
Court to consider whether, despite the absence of
mutual settled parental purpose, the child had nevertheless gained habitual
residence
in Israel.
[135] Trial periods of residence in another state have led to differing conclusions as to habitual residence. Sometimes a move is looked at as permanent but with a possibility of coming back after a set period. In such cases the decision would usually be that there has been a change in habitual residence (as long as there has been a period of residence for an appreciable period). In other cases it is looked at as a stay for a delimited period with the possibility of staying if things work out that way. Depending on the length of the period this would usually lead to a conclusion that habitual residence has not changed. In Gitter, somewhat surprisingly given the length of the trial period and the objective manifestations of a decision to move permanently to Israel, the case was held to have been within the first category. In Re B (Minors) (Hague Convention) (No.2) Waite J held that the children’s habitual residence had changed as the settled purpose of both parents was to use the undetermined period in Germany to provide a base for reconciliation an for planning a fresh start.
[136] As indicated above, however, there have also been cases
where agreed periods of residence of less than a year
have led to a
conclusion that habitual residence has changed. SK v KP is one such
case but it had highly unusual facts. Another case is Cameron v Cameron
but only if the six month trial period in that case is viewed as agreement
to a stay for a delimited period. The Court in that case
regarded the agreed
stay as permanent, albeit subject to review, but said that the decision would
have been the same had the case
been for a stay that might only have been for
six months. Beaumont and McEleavy (at 104) are highly critical of the Court in
Cameron v Cameron regarding the agreed stay as permanent but they do (at
99) refer to the case as possible authority for the proposition that an agreed
stay of six months in another state may be enough to have children lose their
habitual residence in the old State. See also the
discussion of that case in
the first Punter judgment at [105] – [106] and [119] and in SK v
KP at [79] – [80].
[137] A further case where the agreed period was only six months is Re R (Abduction: Habitual Residence). In that case the Australian mother and English father had met, married and had a child in London. When the child was seven months old, the father was posted to Germany for what the Judge held was a six-month period. The family’s possessions (including a substantial number of personal possessions, such as photographs) were put in storage in London. After some five months in Germany the mother took the child to visit relatives in Australia. When she asked for a short extension (even on the father’s version only
for some two weeks) to attend an uncle’s 80th birthday
party, the father refused.
When the mother returned via the United Kingdom, she was met with an
application under the Hague Convention.
[138] In deciding the case, Munby J referred to the comments of Lord Scarman in Shah, those of Lord Slynn in Nessa and those of the Court of Appeal in Al Habtoor v Fotheringham. The Judge considered himself bound on the basis of those authorities to hold that the habitual residence of the child had moved to Germany despite the clear ties retained in London, the lack of assimilation (or even attempt to assimilate) in Germany, the short period of residence (both intended and actual), and the frequent parental visits to London. There was, in his view, a joint settled purpose (albeit for a short period) of moving to Germany to enable the father to meet his
work commitments to his employer. In the Judge’s view, during the
period in Germany, the family had only one home and that
home was in Germany.
In this regard, the Judge seemed to place weight on the fact that the
couple’s lease on their London
flat had been surrendered.
[139] Although it is difficult to be definitive on the basis of the
reported decision (given that there may have been factual matters
that were
taken into account but not specifically covered by the Judge), we doubt that the
same result would have been reached using
the Mozes hybrid test, the
Whiting v Krassner child-centred test or the SK v KP test. It may
be that the result reached is explained by the view taken in the United Kingdom
that there is no difference between
ordinary and habitual residence (compare the
views set out above at [121] and [122] and above). It may also be explained by
the
United Kingdom’s adoption of the concept of habitual residence in
other contexts, such as social security (see, for example,
Nessa) and
matrimonial proceedings (see, for example, Mark v Mark). This may make
it more likely that the United Kingdom courts will hold that stays for delimited
terms in other jurisdictions will
lead to a conclusion of a change in habitual
residence than would be the case in the United States or New
Zealand.
[140] We consider that the most relevant of the cases discussed above is
that of Whiting v Krassner. This is because habitual residence was held
to have changed where the period involved was two years, the same period as in
the
present case. In Whiting v Krassner the parents agreed on 19 October
2001 that their one year old child would move with the mother to Canada for two
years and then return
to the United States, provided the mother could legally
live and work in the United States and it was safe to return (the mother’s
concern was with the possibility of terrorist attacks post September 11). In
December 2001, during an access visit with the child
in Canada, the father took
the child to New York. The United States Court of Appeals for the Third
Circuit upheld the finding of
the District Court that the child was habitually
resident in Canada.
[141] The Court noted that other courts have examined the issue of habitual residence using varying formulations, with varying results but considered that this is to be expected because the inquiry is necessarily “fact-intensive and circumstantially
based”. In the Court’s view, the fact that the mother and
daughter were to return to the United States did not in any
way diminish the
parties’ settled intention that the two were to remain in Canada for at
least two years. The Court referred
to the concept (as set out in
Mozes) of abandonment of the existing habitual residence as a useful one
but considered that the intent need not be to abandon the old
habitual residence
forever. The Court said that the intent to abandon a former place of residency
of a one year old child for at
least two years certainly can (and the Court held
did in this case) effectuate an abandonment of that former habitual residence.
The fact that an agreed stay is of limited duration does not hinder the finding
of a change in habitual residence.
Cases referred to by Mr Pidgeon
[142] In support of his proposition that parental agreement for an indefinite stay is needed, Mr Pidgeon referred to Mozes, S v M, Brennan v Cibault, Re S (A Child: Abduction) [2003] 1 FLR 1008 (EWCA), Paz v Paz 169 F Supp 2d 254 (SDNY,
2001), Re H (Abduction: Habitual Residence: Consent) [2000] 2
FLR 294, In Re S (Minors) (Abduction: Wrongful Retention) and
Re N (Abduction: Habitual residence) [2000] 2 FLR 899. We do not
consider that these decisions support Mr Pidgeon’s proposition. All of
these decisions fit
within the category of cases where the agreed period of
residence was less than two years (see at [125] and [127] above) and none
were
shuttle custody arrangements.
[143] In Mozes, the agreed length of stay was fifteen months. It
was thus a shorter period than in the current case and intended to be a one-off
stay for educational purposes. The children had come to the United States from
Israel to attend school and partake of American culture.
The father remained
in Israel and continued to provide the economic support for his wife and
children while they were in the United
States. All the children’s
relatives remained in Israel and they had only temporary visas for the United
States. The continuing
ties to Israel were therefore very strong.
[144] The Court in Mozes did not say that the habitual residence of a child can never change where there is parental agreement for a delimited period in another jurisdiction, although it did say at 1077 that the courts would generally hold that to
be the case. The Court did, however, recognise that, where a child has no
clearly established habitual residence elsewhere, it may
become habitually
resident in a place where he or she was intended to live only for a limited
time, referring to Re A and others (minors) (abduction: habitual
residence). It said that the same is true where the child’s prior
habitual residence has been effectively abandoned by the parents.
Where there
is no such intent to abandon, the Court considered that a prior habitual
residence would be supplanted only where the
objective facts point unequivocably
to that conclusion. The Court, referring to Johnson v Johnson, did
recognise that this could happen even during a stay not intended to be
indefinite - see the discussion at 1082. Mozes therefore does not
support Mr Pidgeon’s proposition.
[145] Mr Pidgeon also relied heavily on S v M. In that case, the
agreed length of stay was held to be 13 months and the purpose was to give the
mother a break. It is true that
the Judge in that case said that it was for the
father to show that the move was with the intention that it would be permanent
or
at least open-ended. In this Court’s first Punter judgment,
Glazebrook J noted, at [96], that the Judge went on to say that the question was
which period should be emphasised, that
of the nine years spent with the mother
as against the most recent 13 months before the events that triggered the
application. Glazebrook
J considered that the Judge may not have been stating a
rule but that he was merely examining the actual purpose in its factual context.
This would have been the correct approach in terms of the principles set out in
SK v KP, discussed at [88] above. Viewed in this manner, the case does
not support Mr Pidgeon’s proposition.
[146] Mr Pidgeon also made reference to Brennan v Cibault. In that case, the Court held that the child remained habitually resident in France. The mother had agreed to an extension of a six week holiday in the United States with the father to a period of six months. It was agreed that the child would then spend six months in France with the mother. In our view, it is important to realise that the agreed period in the United States was short (six months) and that this was the extension of an agreed short holiday of six weeks. This period must further be viewed against the background of a young child who was born in, and had spent the vast majority of her life, in France and a finding by the Court that there had been a settled purpose on the part of the parents to establish the child’s life in France.
[147] Nor does Re S (A Child: Abduction) support Mr Pidgeon’s
contentions. That was not a case of a delimited stay, as the Court found that
the parents had agreed that
the child was to live permanently in Germany with
his mother. As to Paz v Paz, the conclusion in that case was based on
the child’s lack of acclimatisation (against a background of frequent
moves), rather
than the temporary nature of the ten-month stay in New
Zealand.
[148] Mr Pidgeon submitted also that the present case is
analogous to Re H (Abduction: Habitual Residence: Consent). In that
case the parties had met in Sweden where the child was born. When the child
was three the mother began a one-year art
course in Spain and England. The
child at first remained in Sweden with her father but they visited the mother in
Spain and vice
versa. After the mother had been away about six months, the
father (with the mother’s agreement) took the child to live in
Wales.
Again there were visits back and forth. The marriage, however, ran into
difficulties and broke down. The mother eventually
commenced Hague Convention
proceedings for the return of the child to Sweden. It was held that the mother
was still habitually
resident in Sweden. She had merely been a student abroad
for a finite one-year period. The Judge also held that the intent was
that the
child was to recommence living with the mother in Sweden after the six month
agreed period in Wales once the course had
finished. In the light of all these
facts, the child’s habitual residence was held to have remained in
Sweden.
[149] Thus the agreed period in that case in (some six months) was significantly shorter than the two-year period in this case. In addition, it was a one-off arrangement. Further, the actual period spent by the child in Wales, after the father’s habitual residence changed and prior to the wrongful retention, was less than three months. We thus consider this to be a decision taken on the particular facts of the case rather than one laying down any general principle. See also Munby J’s comments on this case in Re R (Abduction: Habitual Residence) at [39] - [43]. Munby J noted at [39] that, in any event, both the case discussed at [151] below and Re H were decided before the Court of Appeal’s decision in Al Habtoor v Fotheringham.
[150] The final two cases referred to by Mr Pidgeon do not support his
proposition either. Those cases focused on the principle
that one parent
cannot unilaterally change a child’s habitual residence, rather than on
the fact that the residence was for
a limited period. The conclusion in
In re S (Minors) (Abduction: Wrongful Retention) was so based. Wall
J did not analyse the parents’ settled purpose or the relevance of the
length of the stay (a year in that
case). In the light of the comments of the
Court of Appeal in Al Habtoor v Fotheringham (see at [119] above) and the
decision in Re R (Abduction: Habitual Residence), it may, in any event,
be thought that any decision today would hold habitual residence to have moved
to England. Further, the decision
is criticised by Beaumont and McEleavy –
see fn 74 at 100. This case may, however, as Schuz recognises, be explicable on
the
basis of the policy factor referred to by Schuz of not discouraging
beneficial foreign travel such as sabbaticals - see at [178](c)
below.
[151] Re N (Abduction: Habitual Residence) also applied the
unilateral change principle. In that case the family went from England to Spain
to deal with marital and financial
difficulties. The mother took the
children back to England three months later. The Court’s finding that
habitual
residence remained in England was based upon an assessment of the
circumstances before and after the trip to Spain, leading the Judge
to accept
the mother’s evidence that there was no settled intention to leave England
and take up long term residence in Spain,
as asserted by the father. The Court
took into account the whole factual matrix, including that the family had no
prior connection
to Spain, the continued connection to England (including
belongings in storage), the lack of residential status in Spain and the
state of
the marriage. He said that, even if the father’s habitual
residence had eventually changed to Spain,
his unilateral intention could not
change the child’s habitual residence without the mother’s agreement
or acquiescence.
[152] This case therefore was very clearly one made on its own facts rather than stating a general principle. Indeed, Lord Scarman’s comments in Shah were explicitly referred to as being relevant to the ascertainment of habitual residence. This case may also be a manifestation of a reluctance on the part of courts to discourage attempts to save a marriage – see the policy factor discussed at [178](d) below.
Shuttle custody
[153] Mr McKenzie submitted that this case should be decided in the same
manner as the shuttle custody cases, including Johnson v Johnson and
Watson v Jamieson. Mr Pidgeon’s submission is that those shuttle
custody cases were wrongly decided or that we should not follow them as they
emanate from Scotland and civil law rather than common law
jurisdictions.
The cases
[154] Shuttle custody arrangements would appear to be relatively
rare (if the number of cases dealing with them is any
guide) and have usually
led to a conclusion of a change of habitual residence. Bickerton v Bickerton
is the exception. In that case, the Court held that the children remained
habitually resident in Canada, despite their being physically
present in the
United States for an agreed period of one year. The family had lived in Canada
from the children’s birth until
4 July 1986. At that time, the parents
entered into a written separation agreement which provided for the children to
reside with
each parent in alternating years, starting with the mother in
California in July 1986. That agreement was followed until June 1991
when the
mother brought an action for exclusive custody while the children were residing
in California. The father countered by
seeking the return of the children
under the Hague Convention. The Court held that the children were habitually
resident in Canada.
[155] All the other shuttle custody cases we have been referred to have held there to have been a change of habitual residence. In Brooke v Willis 907 F Supp 57 (SDNY, 1995), the child had lived in the United States for the majority of her life. The parents divorced and on 9 July 1990 the Superior Court of California ordered that the child spend half the time with each parent. It was also stipulated that half of the child’s education should be in the United Kingdom and the other half in the United States. The father returned to England permanently, accompanied by the child who lived in England for the summer. On 28 August 1990, the child returned to California. In December 1990, the mother failed to return the child to England in
breach of the agreement. The mother filed an ex parte restraining order
against the father in California and fled the state with
the child. The father
responded with an application under the Hague Convention (but we note that he
only became aware of the Hague
Convention in August 1994, almost 4 years after
the date of wrongful retention). Neither the mother nor the child had been
located
by the time of that hearing.
[156] The father alleged that, at the time of the wrongful retention of the
child in the United States, the child was a habitual
resident of England. The
District Court granted the father’s petition, stating that, although the
child had spent only one
summer in England, she was well accustomed to her
surroundings, was happy and well cared for during her stay and enjoyed a good
relationship
with her relatives. The Court also referred to evidence that the
child had stood in the town square with a flag in hand and recited
the British
Pledge of Allegiance. This evidence was sufficient for the Court to conclude
that England was the child’s habitual
residence in July of
1990.
[157] The problem with this decision (apart from the rather unlikely nature
of the evidence relating to the Pledge of Allegiance)
is that the date of
retention by the mother was December 1990. It is thus at this point and not in
July 1990 that the child’s
habitual residence should have been determined.
The Judge failed to address whether, once the child had returned to the United
States
in accordance with the agreement, the child had become habitually
resident in the United States at some stage between July and December.
The case
does, however, recognise that habitual residence can change away from the state
of birth in the context of a shuttle custody
arrangement.
[158] In Johnson v Johnson, the Swedish mother and American father agreed that the mother could move back to Sweden with the child but that the child would return to stay with her father in the United States for one year out of every three. Shortly before the mother and child’s departure for Sweden, the agreement was amended to allow the father one period of two years before the child turned 18. The agreement included a clause that the Commonwealth of Virginia would have exclusive jurisdiction to determine all matters relating to the custody of the child and the
parties also stipulated that they would be bound by the terms of the Hague Convention. The agreement was confirmed by a United States court. The mother and child went to Sweden in July 1993 in accordance with the agreement. On
19 July 1995, the father submitted an application seeking the return of the
child. The Supreme Administrative Court of Sweden held
that the child was
habitually resident in Sweden. She had been in Sweden with her mother for more
than two years and had adjusted
to the circumstances of the place where she was
living. In addition, in accordance with the agreement, the child was to spend a
total of eight years in Sweden before she turned 18, compared with only four
years in the United States.
[159] There was an interesting aftermath to that case. The United States complained to Sweden about the case and also brought the dispute to the 1997
Special Commission of the Hague Conference. It argued that courts should
respect agreements as to forum for custody disputes. This
was rejected by the
Commission as detracting from the factual nature of the concept of habitual
residence: see Permanent Bureau of
the Hague Conference Report of the Third
Special Commission meeting to review the operation of the Hague Convention on
the Civil Aspects of International
Child Abduction (17 - 21 March
1997).
[160] The Special Commission stated (at para 16) that parties to such an
agreement should not have the power to create an habitual
residence that does
not match with the factual habitual residence of the child. This is, first,
because the concept of habitual
residence under the Convention is regarded as a
purely factual matter and, secondly, because the Convention provides for a very
specific
remedy applicable in cases of emergency and is not meant to solve
parental disputes on the merits of custody rights. Johnson v Johnson
and the aftermath of that case is discussed in more detail in the first
Punter judgment at [108] – [114]. The comments of the Special
Commission can be taken to reflect a consensus between states as to
state
practice in relation to the Convention. In accordance with art 31(3)(b) of the
Vienna Convention (see at [11] above),
this is relevant to the
interpretation of the Convention and thus the corresponding provisions in the
Care of Children Act.
[161] In Watson v Jamieson, the mother and children moved to New
Zealand from
Scotland in December 1987, with the father joining them in September 1988. The
parents separated in December 1988. The children resided in New Zealand with their mother until the end of 1990 and with their father, also in New Zealand, until the end of 1992. It was then agreed they would reside alternately for two-year periods with each parent, at least until the end of 1998. Accordingly, they spent
1993 and 1994 in New Zealand with their mother and then 1995 and
1996 in Scotland with their father. On 19 August 1996,
the father informed the
mother that he would not be returning the children in December 1996 as
agreed.
[162] Lord Prosser stated that (at 182 - 3) that, where residence
with the two parents is divided equally, it appeared
unreal in the absence of
other differentiating factors to see residence with one parent as primary and
the stays with the other parent
as interruptions. This was especially so where
the period with each parent had been set at a long period so that the girls
could
feel that there was a firm and lasting basis for their presence with the
parent in question. Lord Prosser was thus satisfied that,
when the children
left New Zealand to come to Scotland, there was a settled purpose that they
would live in Scotland for the next
two years. Notwithstanding that they would
go back to New Zealand at the end of that period, he held that the children were
no longer
habitually resident in New Zealand.
[163] In Wilson v Huntley the parents entered into a shared custody agreement because the mother planned on moving from Canada to Germany. Under the agreement, the mother had the child in Germany from February until May 2003. Subsequently, the child lived with her father in Canada until 30 September 2003. She was then returned to her mother for an agreed three-month period. On
10 November 2003, the mother moved to the United Kingdom with the child. The father reluctantly agreed to the mother’s request to keep the child with her until
1 April 2004 to enable the child to bond with the mother’s new baby. The father brought the child back to Canada on 1 April, with the parents agreeing that she would be returned to the United Kingdom on 1 October 2004. Meanwhile, the father moved to Ontario in July 2004. On 10 September 2004 the father told the mother that he wanted to keep the child in Canada. She commenced Hague Convention proceedings on 19 January 2005.
[164] Mackinnon J considered that it is possible for a child to have
consecutive, alternating, habitual residences in two different
states, at
separate times. She found, at [32], that the parents intended to share custody
of the child both in the legal sense and
in the sense of physical custody. This
intention, embodied in the agreement, was given effect in their ensuing conduct,
as the child
lived with each parent for almost equal periods up until 1 October
2004. The facts thus did not support a conclusion that the child
was residing
with one parent and merely visiting the other parent. Accordingly, Mackinnon J
concluded that the child was habitually
resident in Canada at the time of
retention.
Analysis
[165] In submitting that the shuttle custody cases were
wrongly decided, Mr Pidgeon relied on Professor McLeod’s
criticism of
Mackinnon J’s reasoning in Wilson v Huntley, which is
annotated to the beginning of the reported case. Professor McLeod’s
criticism does not, however, support
Mr Pidgeon’s submission that parental
agreement for an indefinite stay is needed. Indeed, Professor McLeod, in his
commentary,
puts forward the view that habitual residence in joint custody cases
should move in accordance with the agreement of the parties
so that, as soon as
one parent’s agreed period of custody expires, the habitual residence of
the child switches to that of
the other parent, even in the absence of any
period of actual residence at all. He states at 438:
Arguably, the father’s retention became “wrongful” when he
retained the child after he was supposed to return the
child according to the
parties’ agreement and the child was supposed to be under the
mother’s care and control. That
the child was prevented from returning
to reside with her mother should not prevent her habitual residence from
changing to that
of her mother unless habitual residence is purely a question of
fact. If one parent cannot unilaterally change a child’s
habitual
residence, then a parent should not be able to prevent a child’s habitual
residence from changing from one joint custodian
to another to reflect
agreed-upon or ordered living arrangements.
[166] Professor McLeod is thus not suggesting that habitual residence remains in the original jurisdiction and that it does not move (which is Mr Pidgeon’s contention). The Professor accepts that habitual residence changes but says that it should be deemed to change in accordance with the agreement of the parties, even in
the absence of a physical move. This approach has the advantage of upholding
the parents’ agreement but it is not within the
contemplation even of
those judges who consider that no appreciable period of actual residence is
necessary, so long as the relevant
purpose is present. Those judges, at the
very least, require the child to have arrived in the other jurisdiction in
accordance with
the parents’ settled purpose - see the minority view of
Hoffman LJ in Re M (Minors) (Residence Order: Jurisdiction) at 503 and
Purchas LJ’s comments in Re S (A Minor) (Abduction) at 16 –
17.
[167] The weight of authority, however, does require actual residence for an
appreciable period before habitual residence can change
– see the first
Punter judgment at [83] – [85] and the decision of the House of
Lords in Nessa referred to at [96] above. Professor McLeod
attempts to counter this by saying that in Wilson v Huntley there
was a renewal of the child’s former habitual residence when the agreed
time with the father had ended. However, this
approach only works if there was
a realistic connection with the other state that could be said to have been
revived. Professor
McLeod also recognises that his approach does not work if
habitual residence is purely a question of fact, which of course
it
is in New Zealand - see at [49] and [50] above.
[168] Mr Pidgeon also submitted that Bickerton v Bickerton shows the common law attitude to shuttle custody cases. We do not consider this to be the case. The Court in Bickerton v Bickerton failed to provide reasons why the children’s habitual residence had not changed. It did, however, say that it based its decision on the evidence provided by the father but without saying what that evidence was. Thus there may have been particular factual circumstances that led to the Court’s conclusion in that case. The case was also decided in 1991, when there was less authority, particularly in the United States, concerning the concept of habitual residence. An opposite conclusion on a shuttle custody case was reached in Wilson v Huntley, which was decided in a common law jurisdiction. In addition, Johnson v Johnson was referred to with approval by the Court in Mozes at 1074 and in fns 47 and 50. It, and Watson v Jamieson, were also referred to with approval by this Court in SK v KP at [78]. Further, the cases on serial habitual residence emanate from common law jurisdictions – see at [129] above.
[169] It is clear from the cases discussed above that, where a
shuttle custody agreement exists and is being implemented,
the courts have
usually concluded that the child has consecutive, alternating habitual
residences. This applies both in civil and
common law jurisdictions. In our
view, this finding is not based on some separate set of principles applicable to
such cases but
on the general principles of habitual residence. In shuttle
custody cases, the parents generally have a settled purpose that the
child
resides with a one parent for a specified period of time (usually relatively
lengthy), followed by a specified period of
time with the other parent, and for
this arrangement to continue. The significance of the ongoing nature of the
arrangement is that
it makes it more likely that the parental purpose is for a
change in habitual residence than in cases of one-off delimited stays
in another
jurisdiction. This purpose is carried into effect when the child physically
moves between the states in accordance with
the agreement and makes a home with
each parent. During the time in each state, the child will carry out his or
her regular day-to-day
life, such as attending school and forming social
contacts. As Lord Prosser said in Watson v Jamieson, in such cases it
cannot usually be said that the child is living solely with one parent and
merely visiting the other – see
at [162] above. Nevertheless, in our
view, the conclusion as to habitual residence in any case does not follow
automatically from
the shuttle nature of the arrangement. It will, as in all
cases, depend on the combination of circumstance in the particular
case.
Civil and common law jurisdictions
[170] Mr Pidgeon submitted that the law relating to the determination of
habitual residence in New Zealand should be kept in line
with comparable common
law jurisdictions. He submitted that the cases which have held habitual
residence to have changed in the
absence of parental agreement for an unlimited
stay (including the shuttle custody cases) are cases decided either in
civil
law jurisdictions or in Scotland where the law is based on Roman law.
We do not accept this submission.
[171] As the Hague Convention is an international convention, there should not be any differences between jurisdictions in the interpretation of the concept of habitual residence. The same interpretation principles, discussed at [10] - [11] above, apply
in all jurisdictions. If there are differences in interpretation between
common law and civil law jurisdictions, the courts should
be working to
eliminate rather than perpetuate them. See in this regard, the remarks of the
Court in Mozes at 1071 – 2. We also note the comments of the
Court of Appeal of England and Wales in Re S (A Child: Abduction)
at [31] that questions of habitual residence under the Convention are to
be determined by reference to the international jurisprudence,
recorded on the
Permanent Bureau’s INCADAT website. The Court made no distinction
between common law and civil law jurisdictions
in this regard.
[172] We do not, however, consider that there are differences in
interpretation between civil and common law jurisdictions. Many
of the cases in
which delimited periods have been held to have changed habitual residence
emanate from common law jurisdictions (see
the discussion above at [126] and
[128]). Similar principles are in fact applied to the determination of habitual
residence worldwide,
although there are differences of emphasis particularly as
regards the emphasis on parental purpose. Interestingly, these differences
of
emphasis seem to be most marked in the United States, a common law jurisdiction
– see the discussion of the differences
between the circuits of the United
States Court of Appeals discussed at [131] – [134] above.
Was there a unilateral change of purpose?
[173] We agree with Mr Pidgeon that it is not possible for the unilateral
purpose of one parent to change the habitual residence
of a child, even if the
parent has the day to day care of that child. The settled purpose must be that
of both parents where both
parents have rights of custody. This appears to be a
principle that arises out of the policy of the Hague Convention. One of the
aims of the Convention is to deter international abductions. To allow the
habitual residence of the child to be changed unilaterally
by the abducting
parent would be counter to this – see in this regard for example Re B
(Minors) (Abduction) (No 2) at 995 per Waite J and Re A (Wardship:
Jurisdiction) at 771 per Hale J.
[174] The relevant time for the court’s inquiry into habitual residence is, however, immediately prior to the wrongful retention or removal. In this case, both parents
agreed that the children would live in New Zealand with their mother for
alternating two-year periods. That decision was a mutual
one and not a
unilateral one on the part of Mrs Punter. If, as a result of their mutually
agreed stay, New Zealand had already become
the children’s place of
habitual residence during the agreed two-year period before their retention in
February 2004 (and Judge
Ullrich held that it had) then the unilateral change
principle does not apply.
Policy issues
[175] Mr Pidgeon submitted that a decision that habitual residence had
moved to New Zealand in this case would undermine the integrity
of the
Convention. This was also the primary reason for Goddard J’s
decision.
[176] In her article “Policy Considerations in Determining the
Habitual Residence of a Child and the Relevance of Context”
(2001) 11 J
Transnat’l L & Pol’y 101, Schuz identifies a number of policy
issues that are relevant to the Convention.
She considers that, since judges
cannot be prevented from being influenced by unexpressed policy considerations,
enumeration of
the relevant policy considerations and the use of rational
methods to balance conflicting considerations will in fact inject certainty
into
the determination of habitual residence.
[177] We agree that there are (often competing) policy issues that may be
taken into account in any decision on habitual residence
and that it is
legitimate (and probably advisable) that these are openly identified and
weighed. We do not, however,
consider (and Schuz does not suggest) that
policy issues should be taken into account in a way that obscures the factual
nature of
the inquiry.
[178] The policy factors Schuz identifies are:
(a) A child should be protected from abduction, whether in the form of
removal or retention, at all times (see at 20 – 28).
(b) Abductors should not be rewarded because, first, one of the aims of
the
Convention is to deter potential abductors and, secondly, a person
should not benefit from an illegal act (see at 28 – 29). She points
out that issues will also arise where the ‘innocent’
parent chooses
to get a child back by ‘re-abduction’ rather than through lawful
means.
(c) Not to discourage beneficial foreign travel through a parent fearing
that, if things go wrong and he or she ‘goes home’
with the child,
this will be considered a wrongful removal (see at 30 - 32). Beneficial
foreign travel may include short term relocations
for specific purposes such as
sabbaticals, academic exchanges and tours of duty abroad.
(d) A finding that a new habitual residence has been acquired might
discourage parents from trying to save their marriages and thus
contradict the
policy of encouraging matrimonial harmony in the child’s best
interests (see at 32 – 34). This
policy issue could arise, for example,
where one parent reluctantly agrees to move in the hope that the relocation will
improve a
deteriorating marriage. However, the policy could only prevent an
habitual residence from being acquired for a limited period of
time.
(e) Agreements should be honoured unless there are good reasons to the
contrary (see at 35 – 39). Schuz, however, recognises
that a policy of
honouring agreements does have difficulties as it contradicts the
physical factual nature of habitual residence.
In addition, the longer the
child is resident in a new country, the stronger the policy considerations will,
in her view, be in
favour of a new habitual residence being acquired. Due to
these difficulties, Schuz considers that this policy should only be relevant
in
‘borderline’ cases where it is clear that any agreement was
voluntary. We note too that Schuz specifically excludes
shuttle custody
arrangements from this principle (see fn 166 at 35).
(f) Where possible, disputes should be decided in the forum conveniens, as the choice of habitual residence as the relevant test under the Convention was clearly designed to further this objective (see at
40 - 42).
[179] The restoration of the status quo is another possible policy
issue. This objective was recognised by Ontario Superior
Court of Justice in
Wilson v Huntley at [45]. It was pointed out, however, that restoration
of the status quo was not a realistic objective in that case. The status
quo
was that the child resided for approximately equal periods of time with each
parent, in different jurisdictions. In the context
of that shuttle custody
arrangement, regardless of whether the custody litigation was pursued in Canada
or in the United Kingdom,
the outcome would not have been a restoration of the
status quo.
[180] One of the main policy factors identified by Mr Pidgon as being
relevant in this case is that of deterring retention. The
policy of deterring
retention must, however, be analysed in terms of the definition of retention.
An application for the return
of a child under the Hague Convention can only be
made if a child was removed or retained from a state which was the child’s
habitual residence immediately prior to the removal or retention – see s
105 (1)(d) of the Care of Children Act, quoted at
[18] above.
[181] If the place a child is retained from is not his or her habitual
residence, there is no ability to apply for a return order,
even if the
non-return is in breach of an agreement. This is why Blanchard J, in the first
Punter decision, said that the decision as to habitual residence is
“logically prior” to that of retention – see at [50]
above.
Similarly the United States Court of Appeals in Whiting v Krassner (at
546) refers to it as a “threshold question”. The policy of the
Convention, therefore, is, more precisely, to deter
abduction or retention
from the place of habitual residence. The policy is not the deterrence of
abduction and retention per se. Thus the policy of deterring retention
or abduction should not be allowed to distort the decision on habitual
residence.
[182] The preamble to the Hague Convention shows that the Convention is focussed on the best interests of children – see at [13] above. This is, however, in the normative sense of children as a group. The policy behind the Convention is that it is in the best interests of children generally if they are not abducted or retained away from their place of habitual residence and that, if they are, they are returned as soon as possible. This is so that they can be returned to familiar surroundings and to
the place best able to adjudicate on the long-term custody arrangements. The
less familiar the circumstances of a prior habitual
residence are and the better
able the new jurisdiction is to adjudicate on custody arrangements, the less the
rationale for returning
a child applies.
[183] This means that the concept of habitual residence should not be
interpreted in a manner that results in a child being returned
from a state that
has become the environment in which his or her life has developed - see the
comments in the Pérez-Vera
report on the aims of the Convention, set
out at [15] above. The Convention itself recognises this when it provides that
children
need not be returned if the application is made over one year after
retention or abduction and the child is settled in the new environment.
While
there is a residual discretion to return in such circumstances, it is likely to
be exercised relatively rarely – see
HJ v Secretary of State for
Justice (as the New Zealand Central Authority on Behalf of TJ)
CA140/04 11 April 2006 at [56] – [57] for a discussion of the
principles involved.
[184] The other policy factor identified by Mr Pidgeon was that of
upholding parental agreements. We accept that the policy
of deterring retention
can import a policy of upholding parental agreements in cases where an agreed
visit is for a limited period.
Parents should not be inhibited from consenting
to children visiting another state by fears that habitual residence will be held
to have changed. This was recognised in SK v KP at [83]. This policy
element will be stronger the shorter the stay in the other state is intended to
be.
[185] In SK v KP, it was noted, however, that there can be tension between the two aims of the Convention where the question of habitual residence arises in a situation of retention rather than abduction. The two aims are of deterring retention and of ensuring the child’s future is determined in the state where the child has the focus of his or her family and social development. The longer the child is in a new state, the less force the policy considerations of enforcing parental agreement have towards an argument for his or her return. This is for the very reason that, where there has been an extended stay in the new state, enforcing an agreement may in fact remove the child from the focus of its family and social development and from the forum conveniens for deciding the substantive custody issues – see the comments of Schuz,
discussed at [178](e) above. Further, as habitual residence is a factual
concept, policy considerations cannot be used to override
or thwart the factual
nature of the inquiry. This is why Schuz states that the policy of upholding of
agreements should only be
taken into account in borderline cases - see at
[178](e) above.
[186] We comment also that it is not really accurate in any event to talk
about upholding parental agreements. It might be thought
unlikely in this case,
even if a return order was made, that the children would be sent to live with
their father in the interim
before the substantive custody proceedings could be
heard. The children are young and Mrs Punter has been the main custodial parent
for most of their lives and she had indicated that she will accompany the
children to Australia in the event a return order is made.
In addition, the
shuttle custody arrangement itself would not be “enforced” in either
Australia or New Zealand in any
substantive custody proceedings. In Australia,
as in New Zealand, the focus in any such custody hearing would be on the best
interests
of the children and not on parental “rights” - see s 4 of
the Care of Children Act and s 65E of the Family Law Act 1975 (Aust
Cth).
[187] In terms of the other policy factors set out at [176] - [179] above,
there is unlikely to be much to be gained (in a
substantive sense at
least) from forum shopping between Australia and New Zealand given the
similarities between the two jurisdictions.
Restoration of the status quo is
largely inapplicable in these circumstances, as the status quo, for the
substantial period of
two years, has been residence in New Zealand. Further,
Mr Punter was not the main custodial parent even while the children were
in
Australia and he is no longer resident in Sydney where the children most
recently lived. The most convenient forum is also likely
to be New Zealand
given that witnesses as to the children’s situation over the last two
years at this very critical stage of
their lives will all be in New
Zealand.
Should SK v KP be overruled?
[188] It will be obvious from what we have said above that we consider the principles applied in SK v KP to have been correctly stated. Even had that not been the case, however, we would have accepted Mr McKenzie’s submission that we should not overrule the decision. This Court recently, in R v Chilton and Archbold,
reaffirmed the principles governing when it will overrule an earlier decision
of the Court. That decision made it clear that this
Court will only depart
from previous decisions in rare cases, and we do not consider this to be such a
case. SK v KP is a recent and fully reasoned decision of this Court
which was decided after full argument and with reference to all the relevant
earlier authorities. Further, the decision is consistent with subsequent
international developments. In addition, Mr
Pidgeon has not referred the
Court to any academic criticism of the decision, there has been no change in to
the social and economic
conditions of New Zealand and, as an appeal to the
Supreme Court is available, this is not a final decision which is unable to be
appealed further.
Discussion of Judge Ullrich’s decision
[189] Judge Ullrich had to assess the habitual residence of the
children as at
7 February 2004. The proper approach is to treat the inquiry into habitual
residence as a broad factual inquiry – see at [88]
above. Competing
policy factors should be weighed but the factual nature of the inquiry should
not be obscured by those policy factors
or by an adherence to rigid rules.
Parental purpose should be treated as an important factor but not
decisive.
[190] In this case, Judge Ullrich’s decision was in accordance with
those principles. She took into account her finding that
the settled purpose of
the parents was for a delimited stay in New Zealand with the mother (but see
below at [196] - [200]). She
took into account the shuttle nature of the
agreement, the actual length of stay (two years by 7 February 2004) and the
strength
of the ties with the prior habitual residence, including the
fact that the children were born in Australia, that they had
spent the first
part of their lives there, that it had been intended they return there after two
years, that their father still lived
there, the contact (limited to telephone
contact) the children had had with Australia since being in New Zealand, and the
contact
they may have had if the agreement had been fully complied
with.
[191] Judge Ullrich took into account, as a counterbalance, the similarity between the cultures in New Zealand and Australia and the level of connection with each, finding the cultural and social connections with New Zealand to be strong. She
considered the details of the children’s lives in New Zealand,
including that they had been attending school and had developed
a social
network. She concluded that the sense of connection with Australia could not
override an extended period of day to day
living in New Zealand where there was
at least equal familial, social and cultural connection. She also considered
the policy factors
that had been articulated by Mr Pidgeon but was of the view
that they were not applicable in the context of this type of
arrangement.
[192] In our view, Judge Ullrich, if anything, underestimated the
connection to New Zealand. She commented that there were at
least equal
familial, social and cultural connections to both Australia and New Zealand as
at 7 February 2004. Certainly there was
equal family connection if just the
parents are considered. However, in New Zealand the children have Mrs
Punter’s wider family
as well as Mr R’s family. They also have a
baby brother whose habitual residence is clearly in New Zealand. In Australia,
apart from Mr Punter, there is a maternal aunt living on the Gold Coast but
there is no mention of any other relatives.
[193] In terms of social connections, there is evidence of A’s
“boyfriend” who lives in Brisbane. By contrast,
there is extensive
evidence of the many social connections the children have made while in New
Zealand and their integration into
the community in which they live. Further,
the mother had been the main custodial parent before they came to New Zealand
and the
children were coming to an environment that had been her earlier
habitual residence. We note too that Mr Punter has
now returned to
Brisbane, a city the children left when they were respectively aged almost four
and one and a half.
[194] As to cultural connection, the children were of course born in Australia and spent the first part of their lives there – A until she was almost six and B until he was three and a half. They undoubtedly have cultural (and emotional) ties to that country as a result. On the other hand, the children were very young when they left Australia, neither parent is Australian (their mother being a New Zealander and their father British by origin), and their cultural connections with New Zealand, particularly with their Maori heritage, have been fostered during their time in New
Zealand. The children’s time in New Zealand has also been spent at a
time when they were clearly of an age to understand and
participate fully in
that culture.
[195] Counterbalancing these additional factors pointing to New Zealand as
the children’s place of habitual residence
is the fact that Mrs
Punter was herself uncertain that New Zealand would remain her habitual
residence. There is no doubt
that her uncertainty could have translated itself
to the children, despite Mrs Punter’s best efforts. Mr Pidgeon submitted
that the mother’s uncertainty was not taken into account by Judge Ullrich.
Judge Ullrich was, however, clearly aware that there
was a possibility of Mrs
Punter going back to Australia as the evidence was detailed in her judgment.
She must therefore be assumed
to have taken it into account. Further, it is
difficult to see that any uncertainty on the part of Mrs Punter would have
translated
itself to the children to such an extent as to render New Zealand
incapable of becoming their habitual residence, particularly in
light of the
additional factors detailed above. Mrs Punter’s consideration of a return
to Australia was not, after all, a
definite intention to return (except on a
contingent basis if the children were to return) and any timing was uncertain.
In addition,
although the children were aware that there were custody issues,
neither parent (to their credit) seems to have troubled them with
the
details.
[196] One aspect of Judge Ullrich’s decision that we regard as open
to question is her conclusion on settled purpose. She
discussed the principles
to be applied at [70] - [72] (quoted at [55] above). Her proposition (at [70])
that, where there is agreement
to take a child to another jurisdiction for a
defined period of time, then habitual residence will not change is not in
accordance
with the principles set out above at [110] - [139]. Under those
principles, even using the settled purpose test, residence for a
delimited
period can result in a change of habitual residence.
[197] Judge Ullrich also appears to consider (see at [71] – [72]) that there must be one dominant habitual residence for the whole of an arrangement, at least where there is to be an imbalance of time spent in the relevant states or where there are other than equal cultural ties. She does not appear to accept the possibility that there may be a parental purpose for the child to have serial habitual residences, although she recognises later that there can in fact be serial habitual residences – see at
[59] above. If there can in fact be serial habitual residences then there
must be able to be a parental purpose that this be the
case. Whether there is
such a purpose will of course be a question of fact to be decided in each
case.
[198] In deciding that there was no settled purpose in this case, Judge
Ullrich placed emphasis on the fact that the children were
to be returned to
Australia in the event of Mrs Punter’s death or disability. There is,
however, no suggestion that this was
anything other than a contingency plan to
deal with events that were not thought likely to occur, certainly within the
first two-year
period. We thus consider it of little moment in deciding upon
the parents’ settled purpose.
[199] In this case, the children were coming to New Zealand with
their main custodial parent to her country of birth and
to a country that she
intended would be her habitual residence. The language they were to speak was
the same and there are significant
cultural similarities between the two
countries. The children were to come to New Zealand for an initial period of
two years, a
very long period in the lives of such young children and a period
that fits into the category of cases set out above at [126] above.
It was
clearly envisaged that the children would attend school, make social contacts
and integrate into life in New Zealand.
[200] What is more, the children were to return to New Zealand for further
periods of two years until they were 18. This meant
that A would be spending
some six of the next 12 years in New Zealand and, in the case of B, seven of the
next 14 years. It would
seem very unlikely that the mutual parental purpose was
that the children would be visitors in New Zealand for that amount of time
– see Lord Prosser’s remarks outlined at [162] above. It is thus
strongly arguable that there was a mutual settled parental
purpose that the
children would, for the periods they were in New Zealand, have their home (and
thus their habitual residence) in
New Zealand.
[201] In cases where there is a settled parental purpose, the standard view is that the former habitual residence is lost immediately. See Re J at 578 – 9 per Lord Brandon. This has been the subject of criticism – see Crawford “Habitual Residence of the Child as the Connecting Factor in Child Abduction Cases” (1992) Jurid Review
177 at 187. That there is an immediate loss of habitual residence is supported by
Beaumont and McEleavy at 100, although they do recognise (at 97) that there
can be a gradual rather than immediate shift in habitual
residence. They
appear, however, to limit this gradual shift to cases where parental purpose is
equivocal.
[202] Assuming mutual settled purpose in this case and that habitual residence is lost immediately even in the context of an arrangement of this nature, then the children would have lost their habitual residence in Australia immediately on arriving in New Zealand. They would not, however, have gained habitual residence in New Zealand until they had been resident here for an appreciable period – see at [96] above. What is an appreciable period of time of residence in the new jurisdiction will depend on the facts of each case. Morritt LJ said (in another context) in Nessa v Chief Adjudication Officer [1998] EWCA Civ 164; [1998] 2 All ER 728 (EWCA) at
743 that “all that is required is what is necessary to give to the fact
of residence the quality of being habitual in accordance
with the normal meaning
of that word.”
[203] When coupled with a settled purpose, a period of as little as one month has been considered sufficient to constitute an appreciable period of time - see Re F (A Minor) (Child Abduction) at 555, approved by Lord Slynn in Nessa at
683 and by the Court of Appeal of England and Wales in
Al Habtoor v Fotheringham at [37]. Glazebrook J pointed out, in her
earlier judgment in Punter at [86], that a longer period of actual
residence may be needed for the acquisition of habitual residence in a country
which has an
unfamiliar culture and language than it would in one where a person
has resided before or where the culture and language are familiar.
Similar
comments were made in Mozes at 1078. Certainly there can be no doubt
that the two-year period involved here, particularly for children so young, is
an appreciable
period.
Discussion of Goddard J’s decision
[204] Judge Ullrich’s decision was in accordance with the correct principles and clearly available on the facts. Goddard J thus could not properly have come to the conclusion that it was wrong, particularly as it was a decision emanating from a specialist court – see Wright v Powell [1982] 1 NZLR 473 at 475 and SK v KP at [25] per McGrath J and at [99] per Glazebrook J. The principles relating to appeals
from specialist courts apply with even more force in Hague Convention cases,
given that decisions are required by statute to be speedy
– see at [29]
above. If decisions are overturned too readily on appeal this will undermine
the summary nature of the jurisdiction.
After all, decisions under the
Convention are only as to choice of forum and not decisions as to ultimate
custody (or even as to
ultimate country of residence).
[205] This case is an illustration of the difficulties that can arise in
this regard. It is now over two years since 7 February
2004 when, according to
the agreement, the children should have been returned to Australia. This
period can only have strengthened
the children’s ties to New
Zealand.
[206] Even had Goddard J been entitled to examine the case de novo,
however, her decision was not in accordance with the principles relating to
habitual residence applied in SK v KP, a decision that was binding on
her, although unfortunately not referred to her – see at [87]
above. Goddard J’s
assumption regarding settled purpose was that,
unless there is mutual agreement for an indefinite stay, then habitual
residence cannot change. This is clearly not the case – see at [109] -
[152] above.
[207] Equally, Goddard J’s view that there can be only one habitual
residence for the duration of any shuttle custody arrangement
is inconsistent
with the recognition in the caselaw that there can be serial habitual residences
– see at [129] above. We
also refer to the case of Watson v
Jamieson, discussed at [161] - [162] above. As recognised by Lord Prosser
in that case, it is artificial to suggest that there is one dominant
residence
in a case where a child spends lengthy periods in alternating countries and
experiences all the attributes of a home during
these periods, including
schooling and social contacts. In our view, this is particularly so
with young children who
are at a stage of development where a period of even
one year can make a huge difference to their level of development.
[208] Goddard J appears to have been reinforced in her view about settled purpose by a finding of deceit on the part of Mrs Punter. We accept Mr McKenzie’s submission that it was not open to Judge Ullrich or to Goddard J to make a finding that Mrs Punter had never intended to abide by the agreement to return the children.
Mrs Punter deposed in her affidavit of 13 November 2002 that she intended to
abide by the agreement at the time she signed it. This
was not challenged by Mr
Punter in any of his affidavits and an allegation of deceit is still not part of
Mr Punter’s case.
Mrs Punter has therefore never been given the
opportunity to answer any deceit allegation. Mr Pidgeon did question Mrs Punter
on
the coincidence in the timing of her application for custody with her moving
in with Mr R – see at [39] above. This, however,
suggests the recognition
of a possible motive for a change of mind on the part of Mrs Punter rather
than deceit from inception.
We consider that in the circumstances it
was not open to Goddard J to find deceit.
[209] In any event, the suggestion of deceit is at odds with her earlier
finding as to Mrs Punter’s settled purpose being
that the children should
be returned – see at [64] above. Further, it is by no means clear what
effect any deceit on Mrs Punter’s
part may have on the question. Does it
turn the case into one of abduction, despite the fact that Mr Punter agreed to
the children
coming to New Zealand? Does that depend on the nature, extent and
effect of the deceit? These questions (and no doubt others)
would need to be
analysed in a case where the matter does arise and we thus make no further
comment on this topic.
[210] Goddard J also considered it important that Mr Punter had not
conceded jurisdiction to the New Zealand courts. Even if this
were correct, the
jurisdiction the parties agree on is not the test under the Hague Convention.
The test is habitual residence.
The 1997 Special Commission of the Hague
Conference rejected the view that choice of court clauses can override the
factual nature
of the inquiry into habitual residence – see at [159]
above. As William Young J remarked in SK v KP, at [108], given the
factual nature of the inquiry into habitual residence, even an agreement between
parents stipulating that a
child’s habitual residence is in a particular
jurisdiction is not decisive.
[211] Goddard J relied very heavily on the policy of the Convention. We have discussed policy issues above at [175] - [187] above. Goddard J’s particular concern was that a decision that habitual residence had changed from Australia in this case would discourage shared custody arrangements. There is no doubt that the Convention does not deal very well with shared custody arrangements, perhaps
because at the time it was promulgated the assumption was that it
would be non-custodial parents who abducted or retained
children. This has
not been the experience under the Convention – see the discussion in
Beaumont & McEleavy (at 3 –
4).
[212] It is generally accepted that, for Hague Convention purposes, a
person can have only one habitual residence at a time –
see, for example,
Cameron v Cameron at 20 and In the marriage of Hanbury-Brown
(1996) 130 FLR 252 (Aust FC) at 285 - 6. With a true shared custody
arrangement this may seem an unrealistic assumption as
the child will in fact
have two homes at the same time – see the discussion in Beaumont and
McEleavy (at 110 – 1) and
in the Schuz article referred to at [176] above.
We do not, however, see the arrangement in this case as a true shared custody
arrangement.
Given the length of time the children were to spend in each
jurisdiction, it is more properly described as a serial custody arrangement.
The finding of serial habitual residences thus accords with the nature of the
arrangement.
[213] Goddard J’s interpretation would not, in any event, avoid
discouraging shared custody arrangements of this type as it
would only be the
Australian parent who would be protected. For example in this case, if Mrs
Punter had sent the children to Australia
for their access visit in the middle
of the two-year period and Mr Punter had breached the agreement by not returning
them at the
agreed time, then his breach of the agreement could have been made
with impunity in relation to the appropriate forum if Goddard
J’s
interpretation were correct and the children’s habitual residence
remained in Australia.
[214] There is also the question of whether it is important not to discourage shared custody arrangements of the type at issue in this case. Judge Ullrich, an experienced family law practitioner before her elevation to the Bench, did not think so – see at [60] above. It must also be remembered that Hague Convention cases relate only to jurisdiction and not to the substance of any custody dispute. If in any particular case a shared custody arrangement of this type is in the best interests of the children, then it will be retained and enforced in any substantive custody proceedings.
[215] Moving finally to Goddard J’s assessment of the facts, we
remark first that her view that factual considerations
can change
habitual residence only in exceptional circumstances (see at [73] above)
cannot be correct. Given that the courts
have consistently emphasised the
factual nature of habitual residence, factual considerations should be the main
criteria for the
assessment of habitual residence, rather than some kind of
exception.
[216] We also consider that Goddard J did not take adequate (or perhaps
even any) account of the degree the children are integrated
into New Zealand, or
the fact that the children’s New Zealand experiences were the most recent
and during years where children
experience many developmental changes. When
Mrs Punter and the children arrived in New Zealand, A was almost six and B was
three
and a half. During the agreed two-year period in New Zealand, A attended
school for the first time and B attended kindergarten and
started school.
Additional evidence of the acclimatisation of the children in New Zealand is set
out at [36] – [37] above,
including, importantly, the integration into Mrs
Punter’s and Mr R’s families and the birth of the children’s
new
baby brother whose habitual residence is clearly in New Zealand. She also
failed to take into account the additional comparative
factors pointing to New
Zealand as the children’s habitual residence that we detail above at [192]
- [194].
[217] By contrast, the factual matters relied on by Goddard J as favouring
Australia as the children’s habitual residence
were related either
to nationality or to the country where the agreement was signed.
While nationality may be
of some marginal relevance, it is difficult to see
that where a parental agreement is signed can help in ascertaining a
child’s
home (habitual residence). Because of the factors outlined
above, we agree with Judge Ullrich that the children’s sense of
connection
to Australia could not, in this case, override an extended period of day-to-day
living in New Zealand.
Conclusion and result
[218] Judge Ullrich’s decision was, in our view, one made in accordance with the correct principles and one clearly available on the facts. Indeed, there were other
factors which the Judge could have used to strengthen her conclusions. As
this is the case, Goddard J should not have overturned
her decision.
[219] We allow the appeal and set aside the order for return made in the
High
Court. There is no award of costs.
ROBERTSON J
[220] I have had the opportunity to read in draft the judgment of
Glazebrook J and agree with its conclusions.
[221] For myself, the case which only concerns the proper application of
habitual residence under the Hague Convention can be disposed
of
briefly.
[222] The appellant (Mrs Punter) is the mother of two children, a daughter
born
3 April 1996 and a son born 29 August 1998. She and their father (Mr Punter)
had married in Melbourne, Australia, on 14 October 1995.
[223] They separated in 2001 while residing in Australia. By mutual
agreement they shared the custody of the children until January
2002 when Mrs
Punter told Mr Punter that she wanted to return to New Zealand with
the children. He immediately made
an application to the Australian Family
Court to have orders made as to custody arrangements.
[224] Within a short time, the parents reached agreement and proceedings in
the Australian Family Court were discontinued. Their
agreement, which was
signed as a statutory declaration on 18 January 2002, provided that
the mother could immediately
take the children to New Zealand. In clause
5, it provided that she would:
Return the children to [the father] for full care for a period in two years for two years as so (sic) [the father] can maintain a relationship with the said children, I agree to continue with this until the children are 18 years old.
[225] There was effectively a “shuttle custody” arrangement
whereby the children were to spend two years in New Zealand
with the mother and
the next two years in Australia with the father and this alternating would
continue until they were 18.
[226] Notwithstanding this arrangement, on 4 July 2002 the mother filed an
application for the sole custody of the children in the
Family Court in New
Zealand. This was just five months after she had obtained the ability to leave
Australia with the children on
the agreed terms above.
[227] Not surprisingly proceedings were commenced at the
instigation of Mr Punter under the provisions of the
Hague Convention
for the return of the children to Australia for issues in dispute to be
resolved in that jurisdiction.
[228] The provisions of that Convention and their reflection in New Zealand
law do not go to the merits of custodial arrangements,
but to the identification
of the proper court in which determinations should be made.
[229] Following a hearing in the Family Court at Porirua on 16 December
2002, in a reserved judgment dated 23 December 2002, Judge
P R Grace
held:
[36] ... However I have come to the view that Mrs Punter has breached
the terms of the agreement by making her application for
custody on the grounds
that the children should know that they do not have to return to Australia.
That action by Mrs Punter must
amount to an act of retention because its purpose
is to remove Mr Punter from a custodial role. If there is a breach then there
is a breach and that is the end of the matter. The Court should not resile from
making what may be an unpalatable decision at that
point by considering that Mrs
Punter may change her mind in the future.
[230] There was an immediate appeal to the High Court at Wellington heard
on
4 February 2003. In a reserved judgment on 26 February 2003, Goddard J found
that the Family Court judgment was unassailable and
must be upheld.
[231] There was an appeal to this Court under s 31B(1)(b) of the
Guardianship Act
1968 on the basis that the case raised a question of the applicability of the
Hague
Convention on the Civil Aspects of International Child Abduction.
[232] Following a hearing on 3 November 2003, on 19 December 2003
(now reported as Punter v Secretary for Justice [2003] NZCA 306; [2004] 2 NZLR 28) this
Court allowed the appeal. By a majority it found that the Family Court and the
High Court had erred in law in finding Mrs Punter’s
application for
custody, even when coupled with statements she had made, amounted to a
“retention” of the children in
breach of the Convention.
Consequently the order returning the children to Australia was in
error.
[233] Glazebrook J considered the concept of habitual residence, crucial as
it is under the Convention, in great detail even though
it had not played a
central part in the hearings in the Family or High Courts. She concluded that
errors of law had been made by
Goddard J in her assessment of habitual residence
and that the case should be remitted to the Family Court so that issue could be
determined on the facts of the case in accordance with the principles as
outlined by this Court.
[234] That course of action, however, was not required as a majority in
this Court ruled that there had been, at that time, no wrongful
retention.
Gault P, in dissent on this point, said:
[8] It seems to me that to be able to apply for custody in New
Zealand, maintaining that this does not amount to retention
(so that the
Convention does not apply) is to defeat the very purpose of the Convention; of
having matters of custody determined
in the Courts of the country of habitual
residence.
[235] The net effect was that, in accordance with the decision of the
majority of this Court, an application under the Hague Convention
could not be
properly made or adjudicated upon prior to 7 February 2004. That was the date
under the parties’ mutual agreement
at which the children should have been
returned and only then, if they were not returned, would they be
“retained”.
[236] It is difficult to read Mr Pidgeon’s submissions before us or in fact the second High Court judgment referred to below without gaining the clear impression that there was a desire to question or take issue with that decision. There was no appeal about that matter. It is a concluded and binding situation unless and until the law is in some way altered and raising by a side wind the contention that there is something unfair about the consequences is unhelpful.
[237] Immediately after 7 February 2004, further proceedings were
commenced. The sole issue on this next phase of the litigation
was habitual
residence.
[238] The matter came on for hearing before Judge Ullrich QC in the Family
Court at Porirua on 12 October 2004. In a reserved judgment
of 20 December 2004
(now reported as [2005] NZFLR 481), the Court concluded:
[105] Despite the agreement between the parents and the justified
expectation of the father that the children would be
returned to Australia at
the end of the two-year period, the children have become habitually resident in
New Zealand and therefore
the provisions of the Guardianship
Amendment Act 1991 are not applicable. The mother may therefore
continue
her application for custody in the New Zealand Court.
[239] There was an appeal filed immediately and a hearing on 27 July 2005
before
Goddard J in the High Court at Wellington. In a reserved decision of 30
September
2005 (now reported as [2006] NZFLR 255), she found:
[68] The Secretary for Justice’s application for the return of
[the children] to Australia succeeds on the grounds that
the settled purpose of
their parents at the time they entered into their long-term shared custody
agreement was for Australia to
be the children’s country of habitual
residence, and Australia remains their country of habitual residence on
application of
Hague Convention principles.
[240] In the course of that judgment, there was substantial reference to
the earlier decision in this Court and the lengthy
analysis undertaken
particularly by Glazebrook J about habitual residence. Everyone seemed to
treat Glazebrook J’s analysis
as obiter and not strictly binding on the
courts below.
[241] Regrettably no reference was made before Goddard J to the decision of
this Court in SK v KP [2005] 3 NZLR 590 which had been heard on 13
October 2004 with judgment delivered on 24 February 2005.
[242] The principles enumerated by Glazebrook J in the first Punter case are repeated in summary form by her in SK v KP at [71]-[84]. They are specifically approved by McGrath J at [19], and William Young J at [107] does not demur from them.
[243] Although William Young J took a different view as to the application
of those principles to the particular facts in SK v KP, it is clear that
this Court had authoritatively determined the law on habitual residence under
the Convention.
[244] The position was conveniently summarised in the judgment of McGrath J
in
SK v KP when he said at [22]:
[22] There is also support for the proposition that the Court should be
slow to infer a change in habitual residence in the absence
of shared parental
attempt to bring it about, this reflecting the weight attached to parental
intention under the Convention:
Zenel v Haddow 1993 SLT 975 at p 979. The
decision of the Court on habitual residence must, however, in the end always
reflect the underlying reality of the
connection between the child and the
particular state. Obviously there will be circumstances in which having been
considered the
facts indicate to the Court that all the circumstances of the
case rather indicate this underlying reality.
[245] Although that judgment post-dates the decision of Judge
Ullrich in the
Family Court, her reasoning and argument is entirely consistent with
it.
[246] Goddard J, in the High Court, in allowing the appeal adopted a different approach to the determination of habitual residence, particularly in the context of
‘shuttle’ cases. That was not available to her in the
circumstance. Her assessment of the corrective approach was inconsistent
with
SK v KP, an authoritative decision on the point.
[247] Mr Pidgeon’s various challenges before us, on the basis of
overseas authority and academic writing, were, in my judgment,
misconceived.
[248] The sole question is whether this Court should consider
revisiting the principles enunciated in SK v KP as to habitual
residence. The test for such reconsideration was recently stated in R v
Chilton and Archbold CA333/04 and CA335/04 1 December 2005, and in my view
this test has not been met.
[249] In the present appeal we have a considered decision of this Court
delivered in
2005. It recognises the tensions which can exist between the various competing interests. It requires that these are to be evaluated and accommodated as part of the facts and circumstances of any specific inquiry. In the intervening period there have
been no international developments which are inconsistent with the approach
of this
Court.
[250] Accordingly, in my view, once the inquiry into habitual residence was
postponed until the beginning of 2004 on the basis that
there had been no
wrongful retention until that time, the decision reached by Judge Ullrich was,
in light of the SK v KP test, inevitable. It was not open to the High
Court Judge to apply different tests. Judge Ullrich’s assessment of all
the
circumstances within their factual context were not impeachable.
[251] The appeal in this Court must be allowed and the decision
of the
Family Court reinstated.
[252] As has been noted a number of times in this litigation saga, the
inquiry to date has been solely as to the Court in which
custody and related
issues should be determined.
[253] It remains open to these parties to seek a workable accommodation
between themselves which is in the interests of their growing
children as an
alternative to future litigation in the New Zealand Family
Court.
Solicitors:
Mathew O’Byrne, Raumati for Appellant
Ministry of Justice for Respondent
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2006/533.html