NEW ZEALAND – WOLFE – 1993 (Return ordered) WOLFE v WOLFE. The mother removed the child from Texas, USA and went to New Zealand. The court ordered the return expressing a dissatisfaction that the two parents could not work out their differences, which the court felt was in the best interest of the child.
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IN THE DISTRICT COURTHELD AT WELLINGTON
FP 743/92
BETWEEN ROBERT REESE WOLFE
Applicant
AND MARTA WOLFE
Respondent
Date of Hearing: 15 & 16 February 1993
Date of Decision: 16 February 1993
Counsel:
Mr Howman for Applicant
Ms Gray for Respondent
Ms Mathers for Children
ORAL DECISION OF JUDGE D J CARRUTHERS
This application comes before the Court under S.12 of the
Guardianship Amendment Act 1991. This Act was passed as an
amendment to the New Zealand Guardianship Act 1 968 in order to
implement the Hague Convention on the Civil Aspects of
International Child Abduction. Section 12(1) provides:
(1) Where any person claims: (a) that a 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 removal and (d)
That the child was habitually resident in that
Contracting State immediately before the removal; that
person or any person acting on that person’s behalf may
apply to a Court … for an order for the return of the
child.”
The section requires the Court if it is satisfied that the grounds
are made out to make an order that the child is returned forthwith
to a person or country specified in the order. There are other
relevant provisions to which I shall refer shortly.
In this case, it is agreed that the United States of America is a
Contracting State within the terms of S. 1 2. The Convention came
into force between the United States and New Zealand on 1 October
1991. The child involved is Frederick Lee Wolfe, born on 16 May
1986, whom I will call Freddy. His parents are American citizens.
Until January 1992 Freddy and his parents lived together in
Galveston, Texas.
The brief background to this application is that in January 1992
the parties separated and cross-applied to the Galveston County
District Court for divorce and custody. I will have more to say
about these proceedings later. On 7 February 1992 Mrs Wolfe was
appointed temporary managing conservator of Freddy and Doctor
Wolfe was appointed temporary possessory conservator. Those
positions are respectively akin to interim custody [WMH FN1] as it
is understood in New Zealand and interim access orders. [WMH FN2]
Both parties were enjoined from removing the child from the
jurisdiction of the Court.
On 1 March 1992 Mrs Wolfe left the United States for New Zealand.
There is dispute about whether Doctor Wolfe knew of her intention
to do so. On 16 March 1992 Doctor Wolfe was awarded temporary
managing conservatorship or interim custody by the Galveston
County District Court and Mrs Wolfe was ordered to return Freddy
to the jurisdiction of that Court. These orders were appealed by
Mrs Wolfe’s attorney and that appeal was dismissed on 9 April
1992.
There are a number of matters in dispute between the parties in
respect of this application, and the first of them relates to the
application of the New Zealand Guardianship Amendment Act to this
situation. in order to establish that the Amendment Act does
apply, the application has to prove the four things set out in
S.12(1).
First, there has to be proof that the child is present in New
Zealand. I do not understand anyone to deny that that is the case.
Next there has to be proof that the child was removed in breach of
the applicant’s rights of custody in respect of the child. “Rights
of custody” under the Guardianship Amendment Act are defined in
S.4 in the following terms:
(1 ) For the purposes of this part of this Act a person
has rights of custody in respect of a child if, under
the law of the Contracting State in which the child was
immediately before his or her removal habitually
resident, that person has either alone or jointly with
any other person or persons
(a) the right to the possession and care of the child
and
(b) to the extent permitted by the right referred to in
paragraph a of this subsection, the right to determine
where the child is to live.”
The first dispute then is whether or not in this case the
applicant had such rights of custody.
The temporary orders made by the County District Court, which I
have referred to, set out the respective powers of the temporary
managing conservator, and the temporary possessory conservator.
Those powers are included in the Court documents. The temporary
possessory conservator is to have, according to that document, the
following rights, privileges, duties and powers:
(a) The duty of care, control, protection and
reasonable discipline of the child during periods of
possession.
(b) The duty to provide the child with clothing food
and shelter during periods of possession.
(c) The power to consent to medical and surgical
treatment during an emergency involving an immediate
danger to the health and safety of the child during
periods of possession.
(d) The right of access to medical, dental and
education records of the child to the same extent as
managing conservator.
(e) The right to consult with any treating, physician
or dentist of the child.
(f) The right to consult with school officials
concerning the child’s welfare and education status,
including school activities.
A further part of the order sets out the days and times when the
temporary possessory conservator was to have possession of the
child and in this case that involved alternate weekends and some
part of Wednesdays.
In its terms, therefore, it can be seen that during the time where
the temporary possessory conservator had rights in respect of the
child, they were rights expressly to the possession and care of
Freddy. I have no doubt, therefore, that that part of the
definition is complied with by the temporary possessory,
conservatorship order. The next limb of the definition is the
right to determine where the child is to live to the extent
permitted by the right to possession and care. There is nothing in
the orders which were made which prevents the “access” parent, for
want of a better word, being able to take the child to such place
as he thinks fit and indeed there is a duty to provide the child
with shelter during periods of possession. It is implicit I think
in the order that during the times of temporary possession for the
purposes of what New Zealand Courts would describe as access, or
the American Courts describe as visitation, there is a right to
determine where the child is to live. It is limited, of course, to
an extent by the fact that the right exercised is an access or
visitation one. I conclude, therefore, that both limbs of the
definition in S.4 are satisfied and that there is, therefore, in
this case a right of custody within the purpose of the definition
and under the Law of the Contracting State.
I have mentioned that the temporary orders which I referred to
also enjoined the parties inter alia from removing the child
beyond the jurisdiction of the Court. In C v C 1989 2 ALL ER 465
CA a father was found to have a right of custody according to
Australian Law, though the mother had the right to possession and
care of the child by a custody order made there. Lord Donaldson MR
said at 473:
“Custody as a matter of non-technical English means
“safe keeping, protection, charge, care, guardianship”.
But “rights of custody” as defined in the Convention
includes a much more precise meaning which will I
apprehend usually be decisive of most applications
under the Convention. This is the right to determine
the child’s place of residence. This right may be in
the Court, the mother, the father, some care taking
institution such as a local authority, or it may, as in
this case, be a divided right in so far as the child is
to reside in Australia, the right being that of the
mother, but in so far as any question arises of the
child residing outside Australia it being a joint
right, subject always of course to the overriding
rights of the Court. If anyone, be it an individual or
the Courts or other institution or a body has a right
to object and either is not consulted or refuses
consent the removal will be wrongful within the meaning
of the Convention.”
That decision has been applied in the recent case in England
of B v B [1992] WLR 865 and in New Zealand in Lynch v Lynch [1992]
NZFLR 523. The obiter view to the contrary expressed in Lehartell
v Lehartell [1992] NZFLR 517 I do not regard as helpful in this
case. Lehartell was decided on other grounds. What is important
here is the emphasis that the Law involved is that of the
Contracting State. The evidence which I have about the Law in
Texas is to be found in the decision of the Texas Court of Appeal
in Henry v Rivera (San Antonio 1990) 783 S.W.2d 766, 768 referred
to in the affidavit of the Galveston attorney, Mr Radcliffe. it is
established there that a custody determination includes visitation
rights. [WMH FN3] I conclude for those reasons that there was
here a removal of this child in breach of Doctor Wolfe’s rights of
custody; both because of his rights and the Court’s rights.
Because I come to the firm view that there was here a removal in
breach of custody rights I need not consider the submission
helpfully offered to me concerning wrongful retention of the child
in New Zealand.
The third requirement under S.12 is that at the time of that
removal, rights to custody were actually being exercised by that
person. There is no dispute that was the case here. Doctor Wolfe
was seeing his child in terms of the Court order and was
exercising those rights at the time albeit with agreed amendments
to the overnight stays.
Finally, it must be proved that the child was habitually resident
in the contracting State. Again as I understand it there is no
dispute about that at least up to 1 March 1992. i find as a fact
that he was so resident.
I find that, therefore, that the requirements of S.12 have been
complied with and there is proper proof of those requirements
before this Court.
I now turn to the matters which are set out under S.13 of the
Guardianship Amendment Act. There are three matters which need to
be referred to in this respect. Section 13 provides grounds for
refusal of an order for return of the child. For the purposes of
this application it is necessary to consider whether or not in
terms of S.13(b)(ii) Doctor Wolfe consented to or subsequently
acquiesced in the removal of the child to New Zealand. It is a
further ground for refusal of the order that in accordance with
S.13(1)(c) 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. I take
note in passing that the language used is forceful and vigorous.
It is not a “best interests” test. That must await the substantive
Court hearing. The onus of proving the existence of such a grave
risk is on the respondent. [WMH FN4]
The other provisions of S.13 do not apply in this case.
I turn, therefore, to consideration of whether Doctor Wolfe
consented to or subsequently acquiesced in the removal. The
evidence of Mrs Wolfe about this is that he always knew that they
planned to go to New Zealand. Her evidence is that the family was
in the habit of coming to New Zealand at frequent intervals. Mrs
Wolfe’s mother lives here and she says it was always part of her
plan to come to New Zealand herself. Not only does she say that
Doctor Wolfe consented to this but she said he actively encouraged
and urged her to do so. That is completely denied by Doctor
Wolfe, who said he had no knowledge of where she had gone to when
he went to exercise his access rights in accordance with the order
and found the house deserted. He says that immediately he found
that to be the case he traveled to their California residence to
see if she had arrived there, it being part of their discussion
that she take up residence in that place where his and his
family’s contact with the boy could be maintained.
When she was not to be found there he suspected she had gone to
New Zealand, had no way of contacting her in New Zealand, in spite
of his efforts could not obtain her address or speak to his son
and finally hired a private detective at a cost of $11,000 to
track her down in New Zealand. it is a question in this case of
credibility. I prefer the evidence of Doctor Wolfe to that of Mrs
Wolfe. It is unbelievable he would have traveled from his home in
Galveston to California if he had known of the arrangement and
consented to it, that she was to go to New Zealand with the child.
It is also unbelievable that he would, as has been established,
spent a large sum of money on a private detective to locate her in
New Zealand if he had known and consented to her traveling here.
There would simply have been no occasion for that expenditure. All
his actions are consistent with his not knowing or agreeing to
such an arrangement. The subsequent Court proceedings are also
consistent with that. All Mrs Wolfe’s actions are consistent with
her fleeing from the United States without such consent, confirmed
by her subsequently covering her tracks and making communication
difficult or impossible in New Zealand. I much prefer Doctor
Wolfe’s evidence in this respect. There is no evidence that he
acquiesced in the child either coming to New Zealand or remaining
here. There were firm Court hearing dates set down in Galveston
and for some time he acted on assurances that those dates would be
complied with and that the child would come back to the United
States for the hearings. It was only when it became abundantly
clear that that was not happening that he took action under the
Convention. He was entitled to do that. The delays were not
unreasonable and do not amount in my view to acquiescence. I do
not find on the evidence which I have that he consented to or
acquiesced in the removal. I also accept his evidence that he had
never instructed his counsel to negotiate on the basis that he
agreed to his son staying here, The draft agreement proffered in
evidence by Mrs Wolfe as evidence of negotiations which were
agreed to by Mr Wolfe, I regard with suspicion. [WMH FN5]
I now turn to the question of whether there is a grave risk that
Freddy’s return would expose Freddy to physical or psychological
damage or would place Freddy in an intolerable situation.
It is Mrs Wolfe’s case that her fundamental concern for Freddy and
indeed the cause of their marriage break-up lay in the fact that
one day shortly prior to all these unhappy events she found on
Freddy’s bed a bag belonging to Doctor Wolfe and in it she found
objects relating to his propensity for sexual deviation. She found
a film which showed him in various sexual acts with a former
colleague of hers. She found pornographic materials and
advertisements and she found equipment used for sexual
gratification. She also found lists of names of people, and from
this evidence she concluded that Doctor Wolfe was part of a ring
of sexual deviants involved in bestiality, sodomy, torture, and
acts of sexual deviation which were disgusting to her and
dangerous to Freddy. All these items were taken by her and lodged
with her lawyer in the United States. Late on the first day of the
hearing of this evidence a parcel was sent by her attorney in the
United States containing copies of this evidence for the benefit
of this Court. I will have something more to say about this
shortly. This exposure came as an enormous shock to Mrs Wolfe who
suddenly realised that her husband had had a secret life kept from
her and Freddy for many years and it is this which makes her
fearful about Freddy’s contact with her husband, What she fears,
she says, more than contact with her husband is contact with the
co-respondent in these matters, whom she now says was also
involved in “lesbian, deviant and incestuous relations with her
son”.
I have looked at the exhibits which were sent to New Zealand. They
consist of personal advertisements of a sexual nature with rather
blurred photographs. The cover describes those as a magazine or
advertisement for “swingers”. There are no indications of any
activities with children or animals. Doctor Wolfe has said in his
evidence that he completely denies that he was involved in any
sexual deviant behaviour. He admits that he was involved with the
woman in the film and that they took a film of their conduct
together. He says nothing was done in front of Freddy, nor were
any of these activities shown to him or made available to him in
any way. The activities shown in the materials I have seen are
those of consenting adults involved in sexual acts. I see nothing
about them which would make me worry about Freddy’s position in
respect of them and indeed there has never been any suggestion
that Freddy was at risk of being involved in these activities. Mrs
Wolfe has elevated these things into a nightmare of horror and
drama, which the evidence simply does not support. I do not
believe Freddy is at risk from these activities and I accept
Doctor Wolfe’s assurances about that. The evidence simply does not
support assertions made by Mrs Wolfe. [WMH FN6 ]
Nor do I accept that her real view of the matter is that the child
would be safe with his father but not safe with other people. All
her actions seem to me have been aimed at preventing contact with
the father. In the United States there was an interim order
giving access overnight to the father. Doctor Wolfe’s evidence is
that Mrs Wolfe was so hysterical about being separated from her
son overnight that he agreed to see the child during the weekends
when access was to be exercised by him during the day only,
returning Freddy at nights. It is clear from the evidence that
that was not in order to ensure Freddy’s safety or to ensure that
Freddy continued to settle in a stable life – it was to ensure Mrs
Wolfe’s stability and security, she having said that she could not
manage to spend a night without him. Her fleeing from the United
States in circumstances of secrecy and concealment are further
evidence of her desire to keep Freddy away from his father and
when Doctor Wolfe arrived in New Zealand she resisted his
application for access to the child here. Again, she resisted it
on the basis of deceit. She filed a formal sworn affidavit in this
Court saying that Freddy was settling into another class at his
school and that whilst he would be familiar with class mates
generally, there would be new people in the class and a new
teacher with whom it was important he became accustomed. She also
referred to the research which she was doing at the school and how
humiliating it would be for her to have Freddy removed at such an
early time of the year, giving rise to inevitable and difficult
questions in her professional working environment. What she did
not say was that in fact she had removed Freddy from the school he
had previously attended in New Zealand and placed him in a
different school. There would have been no classmates familiar to
him at all and she was not of course working there. She not only
deceived the Court by this sworn affidavit, she deceived Mr
Mathers, counsel for the child, as well and the deception included
her place of residence, which she failed to disclose both to the
Court and to counsel for the child, deliberately giving the
impression that she was living with her mother when that was not
true. The whole of her actions were aimed at preventing the child
from having contact with the father.
The most dramatic example of that finally, however, came when
Doctor Wolfe’s application for access was heard in this Court on
29 January. Mrs Wolfe was not present at the time but the case was
fully argued by her counsel on her instructions. The Court made an
access order granting access to Doctor Wolfe for the period up to
this present hearing and also issued an order that the child not
be removed from the country. Three days later Mrs Wolfe was
arrested by the Auckland Airport Police trying to leave the
country with the child. She said in evidence that she had been
strongly advised by her counsel to leave the country prior to the
hearing. She had thought that she had some days in which to do
that. She agreed that it was, in her words, the worst mistake she
had ever made. There is no doubt in my mind that her actions again
confirm her obsession about this child and her obsessive desire to
keep him away from his father. [WMH FN7]
Doctor Wolfe’s position in the United States is one where he
is able to adjust his work situation and hours to properly care
for this child. The evidence is that the child and he have had an
enjoyable two weeks together waiting for this case to come to
hearing and that they have enjoyed each other’s company. This is
confirmed by Ms Mathers, Court appointed counsel for Freddy. I was
impressed by Doctor Wolfe’s acknowledgment of Freddy’s situation
and Freddy’s desire and concern for his mother. In the difficult
situation which Doctor Wolfe finds himself, it would have been
understandable were he to over-emphasise the quality of their
reconciliation as father and son and to deny the position of the
mother in the son’s life. Doctor Wolfe did not attempt to do that
and he referred to Freddy’s distress at the parting from his
mother in Auckland Airport and Freddy’s subsequent concern for his
mother. I am, however, satisfied that Doctor Wolfe is a sensitive
and perceptive parent who will do his best to ensure that Freddy
is looked after properly. There is no evidence that a return to
the United States in his father’s company would expose Freddy to
physical or psychological harm or would place him in an
intolerable situation. Indeed, I think the reverse is the truth.
The mother’s actions in this case have been concerning. Her
invitation during the hearing yesterday to Doctor Wolfe to play
golf with her was, in the circumstances of the history of their
separation, such bizarre nonsense that it is of worrying
dimensions. The way in which she has uprooted this child from the
United States to New Zealand, kept him from his father, denied
access, tried to prevent access in New Zealand, and attempted to
flee New Zealand again, shows an obsession with this child which
is simply unhealthy. [WMH FN8]
I have considered, therefore, all the aspects which I am required
to do under the New Zealand Guardianship Amendment Act. I do not
find that grounds for refusal are made out in S.13. Coming to this
conclusion as I do, the result is a very clear, decisive and
somewhat draconian one. I would have preferred that there be an
arrangement made by these two parents in a co-operative way for
the managed return of Freddy to the United States for the hearing
in Galveston which is expected to take place in April. That would
have been in Freddy’s best interest. However, it is clear in the
circumstances of these parents that no such co-operation can be
expected. The mother’s obsession to keep Freddy from the father
would prevent that being done on a proper basis. There is no
alternative, therefore, making the order required of me in
S.12(2)(b). The grounds of the application are made out. I now
make an order that the child is to be returned forthwith to Doctor
Wolfe for the return to the United States and for the hearing in
Galveston. There will also be orders for the release of the
child’s and Doctor Wolfe’s passports. The order preventing the
removal of the child from New Zealand is discharged.
I express the wish that there be some contact between Freddy and
his mother in a structured and supervised way without any
opportunity for further abduction and in a way which will minimise
distress for Freddy. I ask counsel for the child to organise that
if possible. If it is not possible and the mothers co-operation
cannot be obtained in a proper way, then the child will simply
have to leave the country with his father and await the proper
determination of this family dispute by the Court of competent
jurisdiction in Galveston.
/s/ D. J. Carruthers
_____________________
(D. J. Carruthers)
District Court Judge
Footnotes have been added by William M. Hilton, CFLS They do
not appear in the original decision.
——————–
1. See V.Texas C.A., Family Code Sec. 11.52(10)
2. See V.Texas C.A., Family Code Sec. 11.52(11)
3. A revuew of Henry in fact shows that the court was
distinguishing the general rule that custody and visitation
are the same, but did so under a particular section of Texas
law. In most States a custody determination does include
custody and access. In Texas, for limited purposes, they are
not treated the same. The conclusion of the New Zealand
Court, however, is correct: Custody and visitation are
treated as the same insofar as the Uniform Child Custody
Jurisdiction Act is concerned.
4. See, e.g., 42 U.S.C. 11603(e)(2)(A)
5. This section of the decision outlines a method of proof to
show that there was no acquiescence: The use of external
evidence, e.g, tickets, actions of the parties, etc. It also
seems to require more, indeed much more, to show acquiescence
than was found in In re A (Minors) (Abduction: Acquiescence)
UK Court of Appeal (In the Data Base as INREA2.UK). Compare
to Hallam and Hallam, Milwaukee County, WI where the decision
on acquiesence is similar to that found in this case. (In the
Data Base as HALLAM.WI). See also Levesque v. Levesque, U.S.
Dist. Court of Kansas at Topeka. (In the Data Base as
LEVESQUE.FED.) The views of the U.S. and New Zealand Courts
are more in line with the intent of The Convention, which is
to ensure that children are returned to thei Habitual
Residence.
6. See also Brown v Brown, Family Court of Australia at Sydney,
where allegations of sexual misconduct were raised agains the
mother. The court ordered the return of the child to Austria
so that the Austrian Court could rule on the allegations
raised by the father, hold that this is the intent of The
Convention. (In the Data Base as BROWN.AUS).
7. This may be illustrative of what is known as the “Parental
Alienation Syndrome”. See also Issak v Issak – District
Court of Tel Aviv, Israel – Judge Porot [In the Data Base as
ISSAK.ISR) for a discussion of this issue.
8. This paragraph shows the importance of the behavior of the
parties as far as it is presented to the court. One should
stress to the parties that they are under scrutiny by the
court at all times, particularly since the action is likely
to be summary in nature and the children returned to a place
that is totally outside of the reviewing court’s control.