Court/Judicial body: Family Court, Marton
Date: 28 February 2005 CRC
Provisions: Article 3: Best interests of the child Article 7: Name and nationality Article 8: Preservation of identity Article 9: Separation from parents Article 11: Illicit transfer and non-return
Other international provisions:Hague Convention on the Civil Aspects of International Child Abduction
Domestic provisions: Guardianship Act, Section 23: The Court shall regard the welfare of the child as the first and paramount consideration
Case summary
Background: This case concerned a custody dispute between the mother (SG) who was resident in New Zealand and the father (CG), resident in Malaysia, of a child (C). In January 2003 CG brought the child with him to Malaysia without SG’s consent. Both parties filed applications for custody of C in the Family Court in February 2003. CG filed an application for a declaration of forum non conveniens (whereby courts may refuse to assume jurisdiction because there is a more appropriate forum available to the parties) arguing that the custody dispute should be determined in Malaysia. He relied on the fact that C, who was 4 3/4 years old, had only spent 15 months of his life in New Zealand.
Issue and resolution: Jurisdiction over a custody dispute with a foreign element. The Court refused SG’s application that the New Zealand Family Court was not the correct forum had any merit and enunciated the key principles in deciding this type of applications.
Court reasoning: After examining all the fact of the case and the best interests of the child, the Court held that the New Zealand court was the forum best capable of achieving a decision that was in the best interests of the child. This decision was based, inter alia, on the following material factors: the fact that both parents are New Zealanders, that the child was born in New Zealand; there were no parallel judicial proceedings in Malaysia; all proceedings regarding the child have taken place in the courts of New Zealand for 2.5 years without any objections from the father, indeed the father had expressly acknowledged the competency of the New Zealand court until this arbitrary application; the father had failed to submit any qualitative evidence to enable the court to assess the merits of whether a Malaysian court is a more appropriate forum; and the only reason that the father has adopted his position was because a New Zealand court order could not be enforced in Malaysia. From a discussion of the various cases the Court distilled the key principles applying to forum non conveniens applications in the context of child issue cases and considered each of them in terms of the particular circumstances of this case. The paramount consideration in all cases must be the best interests of the child, as required by s.23 Guardianship Act. The onus rests on the party seeking foreign adjudication. The burden of showing greater suitability of the other jurisdiction was not merely to show New Zealand was not the natural or appropriate forum, but to establish the foreign forum was “clearly and distinctly more appropriate”. In reaching its decision, the court must not be reactive to the conduct of the parent removing the child, but on what is in the best interests of the child. The issue is not one primarily of jurisdiction, but whether, in all the circumstances and having regard to the child’s welfare as the first and paramount consideration, the foreign court or the New Zealand court is best able to determine all custody, access and related questions.
Although the Hague Convention on the Civil Aspects of International Child Abduction did not apply in the present case, because Malaysia was not a signatory, it was appropriate for the Court to have regard to its policy. The Court must also recognise the importance of the CRC, particularly as both New Zealand and Malaysia had either accepted it, or had ratified it. In determining the application according to those principles, the Court may draw from a range of considerations including, but not limited to: trial mechanics and evidentiary considerations, timeframe for determination, personal circumstances, where the child is living, connection with each country, qualitative comparison of competing jurisdictions, genuine proceedings or juridicial advantage (whether one party has sought one jurisdiction for personal advantage rather than to obtain a clear assessment of the issues before them), enforcement, existing or proposed concurrent proceedings and effect of different outcomes, submission to jurisdiction. The ultimate decision on the application must be based upon an overall assessment of the various factors, measured in accordance with the overriding consideration of C’s welfare under s 23 Guardianship Act. That decision must be based on the evidence adduced before the Court. On all the factors relevant to this case, and taking into account the overriding principle in s 23 Guardianship Act, the Court concluded that the New Zealand court was the forum best capable of achieving a decision framed on the best interests of C.
Excerpt citing CRC and other relevant human rights [53] This issue regarding a child’s welfare highlights how different these cases are from those dealing with items of property. The clinical analysis that can be applied to chattels and moveable items, cannot be so simply transported to such a complex thing as another human being. If C had been returned to Malaysia with his mother’s consent, then at least the Court could assess things in something of an environment different from what is almost tantamount to “hostage negotiation”. [54]. In assessing this particular factor, I can highlight some of the obligations that befall the Courts under UNROC. [55] There are a variety of articles that highlight the importance of States Parties recognising and protecting the rights of a child, the identity of a child and so forth. Reference to those articles leads me to a conclusion that, in determining the forum non conveniens argument, in a case where a parent has unilaterally removed a child to another country, that I should not place too much emphasis upon the fact that the child has been in that foreign country for a period of some time. To do so would, in my view, be an endorsement of the wrongful actions of that parent. The actions of a parent in abducting the child have perpetuated the difficulty that the Court of original jurisdiction, which New Zealand is, has in determining best interest arguments. [56] I refer to art 8 which states that States Parties must undertake to respect the right of a child to preserve his or her identity, including nationality, his name and family relations as recognised by law “without unlawful interference”. [57] Article 7 states that a child shall have the right “to know and be cared for by his or her parents”. In this case both parents have breached that fundamental right of their child. [58] Article 9 emphasises that States Parties shall ensure that a child should not be separated from his or her parent against their will and art 11 places upon States Parties the obligation “to take measures to combat the illicit transfer and non-return of children abroad”. [59] Accordingly, in determining the specific issue before me, I neither have the evidence before me nor the support of international conventions to reach a conclusion that great weight should be placed upon where C is currently living.
CRIN comments: CRIN believes this decision is consistent with the CRC. In determining custody disputes, courts should have regard to the Convention and its guiding principles, especially the best interests principle.
Citation: (2005) 24 FRNZ 502
Link to Full Judgment: Not publicly available.