Carter v Carter - [2015] NZHC 3182

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2015-488-53 [2015] NZHC 3182

BETWEEN
NATALIE JANE CARTER

Appellant

AND

JOHN FRANCIS CARTER Respondent

Hearing: 11 December 2015

Appearances:

L J Postlewaight for Appellant
S Henderson and G Coutts for Respondent

Judgment:

14 December 2015

FINAL JUDGMENT OF LANG J

[on appeal against refusal to sanction relocation of children]

Thisjudgment was delivered by me on 14 December 2015 at 1 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CARTER v CARTER [2015] NZHC 3182 [14 December 2015]

[1] This judgment determines two appeals.

[2] The appeal under CIV-2015-488-053 relates to a judgment delivered by Judge Lindsay in the Family Court on 21 April 2015.1 In that judgment the Judge declined to grant the appellant, Mrs Carter, permission to relocate to Melbourne with the five children of her marriage. She also discharged existing interim parenting orders, and made new interim parenting orders in their place.

[3] The appeal under CIV-2015-488-138 relates to a second judgment issued by Judge Lindsay at the request of the parties on 8 September 2015.2 In that judgment the Judge discharged the interim parenting orders she had made on 21 April 2015, and replaced them with final parenting orders.

[4] Following a hearing that occupied three days in September 2015, I delivered an interim judgment on 12 October 2015 in which I tentatively concluded that relocation was appropriate.3 I based that decision largely on factors that had not been in existence when Judge Lindsay refused to permit relocation to occur. In my judgment I directed that Mrs Carter was to file a further affidavit outlining the arrangements she proposed to make in relation to the issues of accommodation and education for the children in Melbourne. I then conducted a further hearing on 11
December 2015 to deal with these issues. During that hearing Mrs Carter was cross- examined in some detail by Mr Carter’s counsel, Mr Henderson, regarding her proposals.

[5] I am now required to make a final decision in relation to the issue of relocation. In doing so I do not propose to re-traverse the issues canvassed in my interim judgment. Instead I turn directly to the issues addressed at the hearing on 11
December 2015.

1      C v C [2015] NZFC 2406.
2      C v C [2015] NZFC 7654.
3      Carter v Carter [2015] NZHC 2486.

Travel arrangements

[6] Mrs Carter has booked and paid for flights to Melbourne for herself and the children, together with their New Zealand nanny, on 16 January 2016. Mrs Carter’s mother will also be accompanying them to Melbourne.

Sale of the home

[7] The parties anticipate that the family home will be listed for sale in January

2016. Mrs Carter has undertaken to ensure that the property is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carter v Carter

Details

AGLC: Carter v Carter [2015] NZHC 3182
Case: [2015] NZHC 3182
Decision Date: 14 December 2015

CaseChat Overview and Summary

The High Court of New Zealand heard two appeals from decisions of the Family Court concerning the relocation of children from New Zealand to Melbourne, Australia. The appeals were brought by Natalie Jane Carter, the mother, against John Francis Carter, the father. The lower court had previously refused to grant the mother permission to relocate to Melbourne with the five children of the marriage, discharged existing interim parenting orders, and made new interim parenting orders in their place. The mother then appealed the decision to the High Court.

The legal issues before the court were whether the relocation of the children to Melbourne was in their best interests and, if so, what conditions should be imposed to ensure that the father's contact with the children was adequately protected. The court had to consider the mother's proposals for accommodation, education, and childcare, as well as the father's concerns regarding the impact of relocation on his contact with the children.

The court found that the mother had put forward a concrete proposal for relocation that addressed the necessary issues. While acknowledging the father's concerns, the court was not persuaded that they were sufficient to reconsider its earlier conclusion that relocation was in the children's best interests. The court proposed to allow the appeals, set aside the order prohibiting the mother from moving the children from New Zealand, and make orders relating to the father's contact with the children once they moved to Australia.

The final orders of the court included allowing both appeals, setting aside the final parenting orders made by the Family Court, and setting aside the order preventing the mother from removing the children from New Zealand. The court also made specific orders regarding the father's contact with the children, depending on whether he chose to relocate to Melbourne or not. The court directed the mother to file a written undertaking to comply with any orders made by the court and provide copies of relevant judgments to the Family Court of Australia if litigation ensued. The court further directed the mother to lodge a total sum of $25,000 in a bank account to meet the father's travel and relocation costs. The court reserved leave to both parties to apply generally in the event that further orders were necessary to give effect to or implement the proposals sanctioned by the court in this judgment. The court also directed that the sealed orders be registered in Australia forthwith so that they are enforceable in that country.

Orders