Lynn and Lynn (New Zealand 1995)Wellington District Court No FP (085) 354/95
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IN THE DISTRICT COURT FP (085) 354/95
HELD AT WELLINGTON
BETWEEN LORNA JOHNSTON LYNN
Applicant
AND DAVID KENNEDY LYNN.
Respondent.
Date of Hearing: 28 June 1995
Date of Decision: 29 June 1995
Counsel:
Mr D J Howman for applicant
Mr J B Murray for respondent
Ms S Bathgate for the child
RESERVED DECISION OF JUDGE D J CARRUTHERS
This is an application made under the New Zealand Guardianship
Amendment Act 1991. That Act was enacted to implement the Hague
Convention on the civil aspects of international child abduction. The
application is made by Mrs Lynn and is for the return of Meredith Jane
Lynn, born on 23 November 1984 to New Jersey in the United States of
America, to the care of the applicant. The application is made under s
12 of that Act.
That section requires proper proof that the child is present in New
Zealand, that the child was removed from a contracting state in breach
of the applicant’s rights of custody in respect of that child, that at
the time of that removal those rights of custody were actually being
exercised or would have been so exercised but for removal, and finally
that the child was habitually resident in the contracting state.
It is common ground that all those matters are properly proved on the
papers and apply in this case.
What is at issue here is whether the respondent, Mr Lynn, can
establish to the satisfaction of the Court any of the grounds set out
under s 13 of the Amendment Act for this Court to refuse an order for
the return of the child. The Court may refuse to make such an order
only if the grounds set out in s 13 apply. The three grounds which are
applicable in this case are those set out in s 13 (1)(c) and (d):
“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 take account of
the child’s views. ”
As I have said, it is common ground that the matters set out in s 12
have been properly proved but for the sake of completion it is
necessary that I briefly set out the circumstances under which
Meredith comes to be in New Zealand.
There have been great difficulties for Meredith between her parents
over a long period. It is clear from the record that each parent
blames the other for that. There have been protracted Court
proceedings, culminating in 1993 in a very lengthy custody hearing
before a Court in New Jersey. As a result of that hearing a joint
custody order was issued by the Superior Court of New Jersey which
vested custodial rights in both parents and also provided that the
child was not to be removed from the state of New Jersey without prior
notice.
It is Mr Lynn’s evidence before this Court that he had for a long time
planned to move to New Zealand with his new wife and with Meredith.
His planning in this regard was careful, orderly and deliberate. He
did not tell anyone else of this plan which was for a permanent move.
He told others of a desire to have a vacation in New Zealand. Without
any information, notice or communication to Meredith’s mother he took
Meredith and came to New Zealand in May of this year.
The three traveled extensively throughout the country looking for an
area in which to settle on a permanent basis. Mr Lynn is here on a
visitor’s permit. He has not yet applied for anything more permanent
than that. He intends to do so. He intends to obtain employment here
and to live in the Tauranga area, which he assesses as the most
attractive place for their future. He says Meredith wishes to stay
also and has decided not to return. He says that the option to return
was given to her on a number of occasions and she declined. I note,
without further comment, that she would have been required, had she
taken that option, to return to the United States of America on her
own.
Perhaps unusually, Meredith’s mother has not come to New Zealand to
pursue this application. Although that is somewhat unusual, nothing in
my view hangs on it. Meredith’s aunt is here. On 21 June 1995 an
application was made under s 15 of the Amendment Act and His Honour
Judge Keane made an order that the child be placed in the interim care
of this aunt, Jane Conlin, in Wellington. There was also an
application for a change of venue which was refused.
Earlier the Judge had made an order that the child not be removed from
New Zealand pending determination of this substantive application;
that the child’s passports, tickets and travel documents be
surrendered and a warrant be issued under s 24 of the Act requiring
the police or a social worker to take possession of the child.
That warrant was executed in Tauranga on 14 June. Meredith was taken
from her father and initially placed in a foster home under the care
of the Children and Young Persons Service. On 21 June, as I have said,
by order of the Court, she was placed in her aunt’s care. The Judge
also appointed counsel to represent the child, having regard to her
age. The Judge expressed the wish that such appointment should be of a
female counsel. Clearly the Judge had in mind that such a person might
be able to discuss matters with Meredith, ascertain her wishes and act
in a way which might help in resolving a difficult matter.
It will be clear from what I have said, therefore, that in this case
there is no doubt at all that Mr Lynn deliberately planned to leave
the United States of America with Meredith in breach of the Court
order there and in order to avoid further contact with Meredith’s
mother. He is quite open about that.
In his defence Mr Lynn puts squarely in issue the provisions of s 13.
He says that to return the child would be to expose her to grave
psychological risk and would place her in an intolerable situation. He
admits there was a prolonged custody hearing in the New Jersey Court,
but he says that the Court there has proven itself to be ineffective
in determining the disputes which have been long running between
himself and Meredith’s mother, that she has serious mental problems
which are not yet resolved and it would therefore place the child in
an intolerable position to be returned to the United States to her
mothers care. He says that he came to New Zealand to avoid all that
for Meredith and “to give her a life of her own”. He says Meredith has
been gravely affected by the disputes which have continued between
them and that the Court’s decisions have not been effective in being
able to restore a balance and indeed are biased on a gender basis and
have not operated in Meredith’s best interests. He hopes a New Zealand
Court will relook at the whole issue and decide matters, giving
Meredith’s interests primacy. He now understands, however, that this
is essentially a “forum” hearing and not a general “best interests”
hearing.
Through his counsel, however, he urges the Court to make further
enquires about the mother’s mental condition in America before any
order for return is contemplated and he also asks that further
enquires be made about Meredith’s wishes.
I turn to the question of Meredith’s wishes. These have been expressed
to the Court in different ways.
First there has been evidence by Mr Lynn of Meredith’s wish to remain
in New Zealand. This has to be regarded with some suspicion since he
is such a vigorous participant in this matter. In addition there is
evidence of careful and in my view inappropriate conditioning of
Meredith towards the protection of her father. I refer particularly to
her being allowed to read the letter sent to him by Mr Lynn’s brother
with references to Mr Lynn being jailed. There is other similar
evidence.
Secondly, there is evidence before the Court in this hearing by way of
cross examination by Ms Bathgate, counsel for Meredith, and emanating
from Meredith’s interviews with the social worker who was caring for
her. Meredith’s statements to the social worker were put to Mr Lynn
for his comment. He was asked whether the comment by Meredith, “I wish
Daddy would stop hating Mummy”, would be a true reflection of
Meredith’s views. Mr Lynn said that he did not hate Mrs Lynn. He said
that Mrs Lynn did not have control over her own actions and he could
not hate her because of that. I have to regard with caution, of
course, what is said to be Meredith’s observations to some other
person who was not called but the statement seems to me to have a ring
of consistency with it when seen against other material which the
Court holds relating to Meredith’s position in this unhappy battle
between her parents.
Then there is a letter said to be written by Meredith at some time
whilst she has been in New Zealand in which she refers to, ” Bad
things that have happened to me”. Amongst those is the comment, “I am
homesick, really ” .
And finally in her submissions to me, counsel for Meredith raised
directly the wishes of Meredith and the possibility of the Court
obtaining further information about them. It must be noticed
immediately and I accept Mr Howman’s submission that s 13 requires the
Court to consider whether the child objects to being returned and
indicates that that is 2gain only to be considered if the child has
obtained an age and degree of maturity at which it is appropriate to
take account of those views.
Ms Bathgate told the Court that her interview with Meredith disclosed
to her a most unhappy child with many anxieties. She said it is simply
not possible to obtain any better view from Meredith other than her
fervent desire that the battle between her parents would stop. “I wish
my mother and father would stop fighting and get together again”. It
is, of course, part of the role of counsel for the child to protect
her client from further unnecessary and unwarranted interventions by
this Court or by anyone else. Ms Bathgate does not suggest or
recommend any further intervention by this Court or further inquiry as
to the child’s wishes. Meredith has already been much interviewed and
assessed including by the Judge in New Jersey. Ms Bathgate is senior
counsel with considerable experience in this field and I accept and
respect her views.
The picture which emerges from Ms Bathgate’s submissions and which is
reflected in the papers is of a confused unhappy and anxious girl
caught in the middle of a terrible battle between her parents. In the
circumstances I do not find as a matter of fact that there is here a
clear objection by Meredith to being returned to the United States,
nor that her wishes should be determinative in resolving this matter.
In the unhappy circumstances in which she is placed, a decision will
need to be made upon quite other grounds.
I return to the other grounds. Is there here a grave risk of an
intolerable situation from which this child needs to be protected? In
H v H (High Court of New Zealand AP 359/94, 12 April 1995) Justice
Grieg in considering an application under the Hague Convention said
this:
“Intolerable means something that cannot be tolerated. It is not just
disruption or trauma, inconvenience or anger. It Is something which
must be of some lasting serious nature which cannot be tolerated.
Human beings and particularly children, can adjust and readjust to
various matters, changes in their lives, death and injury, illness and
other matters. ”
The question here is whether in the words of Grieg J the evidence
supports something of a lasting and serious nature which simply should
not be allowed in the interests of this child if she were ordered to
be returned to her mother’s care in the United States. I have had the
benefit of voluminous copies of parts of transcripts of evidence in
the long running custody case which I have spoken and the comments
from the Judge. There are certificates from various experts and
excerpts of evidence from them. The most recent report in 1995 from Ms
Lynn’s own psychiatrist indicates nothing of a serious nature which
would prevent her having the care of the child. Indeed, that evidence
suggests that she would be able to care properly for the child. The
report I refer to is that of Dr Gursky, made in 1995 and in that
report he says this:
“I am writing to you regarding my patient. (Referring to Mrs Lynn.) I
have been treating Mrs Johnston Lynn since 18 October 1990 when she
was recovering from a depression. She has subsequently been
functioning appropriately without depression. She sees me at
infrequent but regular intervals for monitoring for her anti-
depressants, which she continues, to prevent further episodes of
depression. ”
And the doctor goes on to speak in more general terms about her
abilities as a parent, in which he finds her not at all wanting.
It is not helpful for me to canvas the whole of the evidence.
Obviously Mrs Lynn has medical difficulties which have affected her
mental well-being in the past and have been a serious concern, but the
evidence which was thoroughly canvassed by the Judge led him to the
conclusion that a joint custody order was appropriate, and that a
continuing relationship with her mother was in the best interests of
Meredith. There were also, I add, serious concerns expressed about Mr
Lynn’s stability and control. The evidence of the mother’s
psychiatrist now does not amount to any concern that the child will be
harmed in any physical or psychological way if she were returned to
her mothers care.
I do not think, therefore, that there is evidence of a grave risk now
to Meredith’s psychological or physical health if she were returned. I
have been carefully through all that evidence and I adjourned this
decision overnight so I could take that opportunity. These were
matters which were thoroughly and fully considered by the Judge in the
custody hearing and he came to the conclusion that a joint custody
order with significant times for the child to be with her mother was
appropriate.
Nor can the situation for this child be said to be intolerable in New
Jersey. Ms Bathgate, as her counsellor has pointed out, that the
recent school reports show this child is doing very well at school.
The reports are good
The situation has been difficult enough for Meredith, but the evidence
shows that the great bulk of those difficulties lies in the battle
between her parents which has continued for such a time unabated. Both
parents have to accept responsibility for that.
The worst damage which would be done to this child were the Court to
order her return to the United States lies in the fact that Mr Lynn
has told the Court firmly that firstly his health, and then his
finances and the prospect of being jailed for contempt of Court for
taking the child out of the jurisdiction will preclude him from
returning. He says he has no intention of returning and he and his
wife will make their home here.
There can be no certainty about that. Mr Howman pointed out Mr Lynn’s
application for permanent residence has not yet been lodged. He has
had no FBI clearance and there may be difficulties regarding the
circumstances of his arrival in New Zealand which preclude him from
staying here permanently. It is clear that he came here on vacation
but with an intention of remaining permanently. The whole
circumstances including the subterfuge which was so carefully planned
may preclude him from permanent residence. That has yet to be seen. In
any event, the cases are clear, that the failure of a custodial parent
to return home with a child thereby causing that child further
distress and disruption to the child cannot be a ground for refusing
an order returning a child under the Hague Convention when that is
otherwise justified. I refer to the case referred to me by Ms
Bathgate, C v C. (1989) 2 ALL ER 465 [WMH FN1] where Butler-Sloss LJ
said:
“Is a parent to create the psychological situation and then rely on
it? If the grave risk of psychological harm to a child is to be
inflicted by the conduct of the parent who abducted him, then it would
be relied on by every mother of a young child who removed him out of
the jurisdiction and refused to return. It would drive a coach and
four through the convention, at least in respect to applications
relating to young children.
I, for my part, cannot believe that this is in the interests of
international relations, nor should the mother, by her actions,
succeed in preventing the return of a child, who should be living in
his own country and deny him contact with his other parent.”
This fact, therefore, of distress to Meredith by return, cannot
prevent return when that seems otherwise proper.
I turn to a matter which is always of concern to the Court in these
cases and that is the ability of the Courts in New Jersey to ensure
the proper protection of the child and to determine any issues arising
between these parents and the child on a basis which places the
child’s interests foremost in a fair way with procedures which have
their own integrity.
I have been provided with a copy of a decision in a well known case,
Tahan v Duquette, a decision of the Superior Court of New Jersey
Appellate Division 1992 259 NJ Super. 328. [WMH FN2] Of course I
have had the opportunity of seeing the transcripts of some of the
evidence and the decision of the Judge of the Superior Court in the
custody case between these two parents. It is clear to me from that
information, and from the copies of the New Jersey statute and the New
Jersey Court Rules, that this Court and its procedures are fully
capable of ensuring that the best interests of Meredith are placed
first in any inquiry and of ensuring proper protections for that
child.
Indeed, it would be presumptuous and offensive for this Court to
conclude otherwise and I use those words which I take from a decision
of the Full Court of the Family Court of Australia in Murray v
Director of Family Services ACT (1993) FLC 80, 243, [WMH FN3] a more
extreme case than this but relevant on that point.
I have taken the time, as I have said, overnight to re-read through
the evidence. I am not satisfied that any of the defences under s 13
which are advanced by the respondent have application in this case and
they are not established in my view by the evidence.
That being so, because the grounds under s 12 are properly proved, it
is a proper case in my view for the child to be returned forthwith to
the applicant in New Jersey and I direct that that is to occur
immediately. The previous orders of this Court are vacated. Passport
and air tickets are to be returned to the applicant or her counsel for
that purpose.
I take the view that there is no room, once findings have been made by
this Court, for any conditions to be imposed on decisions relating to
the return of a child under the Hague Convention legislation and in
that regard I agree with the comments, with respect, made by Justice
Grieg in the case of H v H which I have mentioned.
I do, however, think it important that Meredith be given an
opportunity of saying goodbye in a supervised way to her mother, with
whom I accept she has a very close bond. It will be a tragedy for the
child if the father is not able to return to America and take up a
parenting role. Those decisions are difficult ones for him and his
wife to make, particularly having regard to the state of their health,
which he indicated to be a major factor in coming to that resolution.
I add, however, that to some extent the objections made by Mr Lynn
about the difficulties for Meredith on return are avoided if he
remains in New Zealand, because the parental conflict which is having
such an adverse effect on her and about which I have spoken will not
occur if both parents are not in the same country or state.
Finally, I have been asked to make a costs order in this case. I do
not intend to do so. It is clear to me from the evidence I have that
Mr Lynn’s resources are very slim. He behaved in a way, of course,
which was thoroughly objectionable and which this legislation is
designed to prevent, but I do not wish to prevent him from having the
means to return to the United States if he decides in the interests of
this child that is what he must do.
There will be orders accordingly.
/s/ D J Carruthers
_________________________
(D J Carruthers)
Family Court Judge
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1. Available on Hilton House BBS as INREC.UK
2. Available on Hilton House BBS as TAHAN3.NJ
3. Available on Hilton House BBS as MURRAY.AUS