New Zealand Foreign Minister Murray McCully has not taken up NZ First leader Winston Peters' suggestion he apologise to the the envoy community here over a diplomatic immunity saga

A diplomatic immunity "botch-up" that kept children in an international custody dispute in limbo in Wellington for two years has been labelled an embarrassment to New Zealand.

The incident left a desperate dad unable to see his children for more than a year, in what is thought to be the first case of its kind in this country.

Despite demands for intervention at the highest political levels, one fateful mistake in the court system went unheeded.

NZ First MP Winston Peters has demanded an apology from Foreign Affairs Minister Murray McCully over what he said was damage to the diplomatic relations between New Zealand and the country that sent the envoy here – but it looks like there will not be one.

"It's a botch-up from start to finish," Peters said.

"This is a serious embarrassment – we are not a Third World country."

NZ First MP Winston Peters

Weeks before he and the children were due to travel to his next posting, the diplomat's ex-wife, who had come to New Zealand as part of the diplomatic household before their divorce, began emergency custody proceedings without notifying him.

The courts were told the father planned to take the children overseas to a country the mother desperately explained she was unable to live in.

But the mother, who had since remarried, wanted to keep the children here, which resulted in the courts confiscating their diplomatic passports so the custody argument could be heard.

But the father's frustration, detailed throughout leaked documented hearings, was that the entire household had diplomatic immunity from the outset.

His argument was that their immunity status should have made the envoy family – and their passports – untouchable in our courts, a point upon which he was eventually proven right.

But by the time that pivotal judgment was made, the entire household's immunity had expired, meaning the battle over the children was allowed to rage on.

Meanwhile, the father had to leave his children behind to take up his next international posting.

He had been unable to visit them since, while he fought the case from abroad until the two-year legal battle ended last month, with the mother finally agreeing to send the children to their father.

The custody case has been labelled Foreign Affairs' latest "embarrassment", following the high-profile case of a Malaysian envoy who left Wellington by claiming diplomatic immunity while facing sexual assault charges.

Our courts criticised one another's decisions along the way, and in turn copped flak from a judge in the diplomat's home country too, who criticised New Zealand's for assuming jurisdiction.

The foreign court had already made custody orders in favour of the father, agreed to by both parents during divorce proceedings, saying New Zealand's involvement was against the principles of diplomatic immunity enshrined in international law.

NZ First leader Winston Peters is demanding Foreign Affairs Minister Murray McCully apologise to the diplomat, his embassy, and the entire diplomatic community over not stepping in at the case's outset.

Peters, a former Foreign Affairs Minister, had sent McCully a letter alerting him to the saga early on – which went unanswered.

A letter from NZ First MP Winston Peters to Foreign Affairs Minister Murray McCully, dated October 30 asking him to step in over a diplomatic legal issue.

However McCully said this week it would have been "inappropriate" for him to intervene as minister.

Successive politicians, the police which held the confiscated passports, MFAT, and Immigration were all asked to step in by the father in the case, documentation shows.

However, each replied to him that it was not their place.

McCully never replied to his letter, Peters said this week, claiming, from his view as former Foreign Affairs Minister, his counterpart should have sought a legal opinion about the case, and asked MFAT to "do its job."

McCully responded that he did not think it was within his capacity as minister to step in.

"I am aware of this case and am pleased the matter has now been resolved," he said.

"It clearly would have been inappropriate for me, as Minister of Foreign Affairs, to intervene in the matter as it was before the Courts.

"The Ministry [MFAT] provided appropriate advice to the court on the diplomatic status of the individuals involved. The judgment by the High Court reflects that advice."

However, Peters said McCully should apologise to the diplomat, his embassy, and his home country – and explain the incident to the wider diplomatic circles.

Winston Peters, formerly Foreign Affairs Minister has since demanded Murray McCully apologise to the diplomat, his embassy and the entire envoy community over the "botch-up".

"This has held the diplomatic community in contempt... this is not a banana republic, we are a First World country."

Peters said the incident was likely to have put the man – who had by the latter stages of the case dropped his lawyer and begun representing himself – significantly "out of pocket".

New Zealand should offer him recompense for his legal fees, Peters said.

McCully did not offer a reply to Peters' demands.

IS 'DIPLOMATIC IMMUNITY' SPECIAL TREATMENT?

When consular staff are sent to work as envoys or ambassadors in another country, international law recognises them in a special way.

Diplomatic immunity makes envoys – on a very basic level – untouchable by their host country's law.

This is designed them to protect them from politically-motivated accusations. It renders them immune to prosecution in countries with different values to their own, for example in jurisdictions with anti-homosexual laws.

But diplomatic immunity is not designed to protect envoys in cases of extreme offending, such as rape or murder.

South African High Commissioner to New ZealandCommissioner Zodwa Lallie said diplomatic immunity protected her from employment dispute action brought by sacked worker Patience Komla.

In any case, their home country is entitled to waive their right to immunity and put them at the mercy of the justice system of the land where they have committed a crime.

However judging by controversial cases abroad, diplomats' sending states can and do allow them to dodge justice by invoking immunity.

One such case sparked public outrage in New Zealand.

An inquiry was held into MFAT's handling of Malaysian military attache Muhammad Rizalman bin Ismail's sexual assault charge in Wellington.

The inquiry found the New Zealand side led Malaysia to believe it had the country's blessing in allowing Rizalman to waive his diplomatic immunity, so he left the country while facing active charges.

Diplomatic immunity was raised in the early stages of disgraced Malaysian diplomat Muhammad Rizalman bin Ismail, who sexually assaulted a Wellington woman.

He later returned to New Zealand voluntarily and admitted the sexual assault on Wellington woman Tania Billingsley.

South African High Commissioner Zodwa Lallie in Wellington, also controversially claimed diplomatic immunity this year.

Embassy worker Patience ​Komla claimed she was unjustifiably sacked by her boss, Lallie, over a text message she sent to the wrong person.

﻿Patience Komla, who was sacked by the South African High Commissioner on March 3.

Lallie claimed she could not be targeted in an employment dispute over firing worker Patience Komla, invoking "sovereign immunity".

IF THIS FAMILY HAD DIPLOMATIC IMMUNITY - HOW DID WE GET THIS FAR?

This diplomat family's tug-of-love across oceans was long-winded and complex.

The ex-spouses' nationalities cannot be identified due to law that protects the privacy of children at the heart of custody disputes.

Neither parent wished to be interviewed about the case, which has come to an end with the siblings allowed by their mother to return to their father's side at his new posting this July.

The foreign household had arrived in Wellington as a diplomatic family in November 2006, but the parents separated in 2011 and divorced in 2013.

At that time they agreed via their home country's courts that the children would follow their father to his next international posting.

But disputes over where the children should live soon arose.

Both parents had remarried, and the mother had another child to her new husband, a Kiwi.

However as the father's August 2014 due date to move abroad loomed, the mother took eleventh-hour action to keep the children in New Zealand.

She went overseas with the children in June 2014 and kept their diplomatic passports.

In early August, the diplomat's embassy began writing to MFAT, asking for help in the situation. Correspondence shows it declined to step in, advising that the diplomat contact Immigration, as it is "not within the competence of the Ministry" to intervene.

The children's mother then made a trip to the Porirua Family Court for an ex parte hearing on August 18.

In an ex parte hearing the other party is not required to be present, which allows emergency custody disputes to be commenced by one guardian.

The children's diplomatic passports were ordered to be confiscated in August 18, with the mother asking for time to seek fresh talks with her ex on where it was in the best interests of the children to live.

She explained she was not able to be resident in the country he was being sent to, so could not follow her children.

WHY WASN'T THE FATHER TOLD OF THE HEARING?

Before Family Court reforms there was a higher threshold for ex parte child custody applications – usually a matter of urgency, like violence, hardship, or kidnapping, legal expert Professor Mark Henaghan has explained.

There were no accusations of violence in this case.

By all accounts detailed in the hearing notes, the children were well-loved and cared for by their parents and step-parents.

But the mother's claim her children were about to be taken abroad by her father was enough to give Judge Mary O'Dwyer concern.

But by the time the father learned of the proceedings two days later he was already too late to stop the wheels of justice turning.

The police – which were holding the passports on court orders – would not give them back to him.

The twists and turns of the legal system locked the ex-spouses into a series of hearings and appeals that went all the way to the High Court.

EFFORTS TO INTERVENE

Winston Peters, upon learning of the case, sent a letter to Murray McCully in October 2014 saying he was "puzzled" MFAT had not intervened – considering there was no question the household had diplomatic immunity and were not subject to New Zealand's courts.

McCully did not respond.

The dispute was in seven months deep by the time Wellington High Court Justice Alan McKenzie, addressing the father's appeal, issued his decision finding the children's diplomatic immunity meant the Family Court should never have touched the dispute.

He noted in his April 2015 judgment that it was an apparent breach of the Vienna Convention concerning consular relations.

But the road to that point took so long the father was already overseas, and the entire household's diplomatic immunity had expired.

The interim orders were quashed and because the immunity had expired, New Zealand's Family Court would have to hear the custody dispute, McKenzie ruled.

Meanwhile, the diplomat's home country's courts weighed in, demanding in November 2015 that the children be removed from their mother's custody, as agreed to in the divorce proceedings.

The judge noted both parties agreed to waive any ability to litigate the custody agreement in any foreign jurisdiction, because of their envoy status.

When the case finally reached a resolution this April it did so not on a point of law, but rather because the mother agreed for the children to go overseas.

By this point the boy had been clear for some time that he wished to be with his father, according to the judgment, and his younger sister did not express a strong preference either way.

A CAUTIONARY TALE OF LOVE WITHOUT BORDERS

The fact the case got this far will have alarmed the elite diplomatic community, Peters said.

"Any delegation here from abroad with diplomatic immunity will be wondering 'What on earth is going on?'

"People other than this man's case will think, well, there was a requirement for diplomatic immunity to kick in, and it did not."

Henaghan, an international law professor at the University of Otago who is currently researching the effects of the Family Court reform, said there was a growing tide of international custody disputes.

Globalisation meant love increasingly has no borders, and when the international unions ended in tears, warring over where the children should live could reach high stakes.

Some people hired private investigators to dig up dirt on the other party in a bid to portray their ex as an unfit parent, Henaghan told.

He estimated about 40 to 50 such "relocation" cases were heard in New Zealand a year, and he was heading to London next month to present on this very phenomenon.

But none were like the diplomat's debacle, which he called "rare".

"What's unique I think about this, is the diplomatic immunity. That is the interesting part.

"I mean that this is what makes it different from other relocation cases, where one of the parents wants to take [children] outside of the country and the other wants to keep them in New Zealand.

"I can think of very few custody cases where diplomats were the issue."

Henaghan said diplomatic cases could be precedent-setting.

The father had not exactly won this one – the mother agreed for the children to go and the judge only had to decide the timing, Henaghan noted.

However it did show envoy families in New Zealand they could not have their custody battles here.

Henaghan said if the father was frustrated, he had a right to be.

"I can understand the anger of the father because the hearing was done without notice and even though the Family Court didn't have jurisdiction he had no time to overturn it.

"By the time he was proven right in the High Court the diplomatic immunity had expired."

But he cautioned against criticism of the Family Court judge in the case.

Judges had to make tough calls on short notice and the default was to put the dispute in a "holding pattern" until both parties could be heard, Henaghan said.

"It's between a rock and a hard place. Technically they got it wrong… [but] in fairness to the Family Court their instinct is always to do what's best for the interests of the children.

"The court's best instinct is not to say 'We don't have jurisdiction, whatever, we're not handling it'."

"Of course, that became fateful to the father."