EOJ v ACP - [2016] NZHC 276

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-2574 [2016] NZHC 276

UNDER Care of Children Act 2004

IN THE MATTER OF

an appeal against decision under s 46R of the Act

BETWEEN

EOJ Plaintiff

AND

ACP Defendant

Hearing: 25 February 2016

Counsel:

J Moore for Appellant
C A Wilson for Respondent

Judgment:

25 February 2016

JUDGMENT OF DUFFY J

Solicitors:
Teei & Associates, Henderson
Lawes Law, Orewa

Counsel:
Judith Moore, Barrister, Milford, Auckland

EOJ v ACP [2016] NZHC 276 [25 February 2016]

[1] The applicant, who is the mother of a child to whom I shall refer as Y, seeks leave to appeal a decision of the Family Court in which Judge Burns ordered that the applicant would be required to pre-pay a bond of $50,000 if she wished to take Y to visit relatives in Europe.

[2] The applicant and the respondent were previously married; Y is their only child. Y was born in 2011 and is now nearly five years old. The Family Court proceedings originally arose because the applicant wanted to relocate to Germany, taking Y with her.

Factual background

[3] The applicant is a Spanish citizen and the respondent is a New Zealand citizen. They met over the internet in 2008 and in June 2009 the applicant moved to New Zealand to live with the respondent. The applicant and the respondent were married in 2010 and their daughter, Y, was born in 2011.

[4] In August 2012, the applicant returned to Spain, taking Y with her. However in early 2013, the applicant returned to New Zealand. Later in July 2013 the applicant sought to relocate to Germany, again taking Y with her. The applicant had lived in Germany for 18 years prior to her arrival in New Zealand; she has family and good employment prospects in Germany and enjoys the German way of life. In the Family Court the applicant contended that she would be much happier in Germany and that this would benefit Y, since the applicant would then function better as a parent.

[5] The re-location was opposed by the respondent. There was an extended court process which culminated in a two day defended hearing in the Family Court in August 2015 before Judge Burns. He released his reserved decision on 22
September 2015. The judgment is relatively lengthy and includes a comprehensive summary of the factual background as well as a careful analysis of the relevant legal principles.

Decision of the Family Court

[6] Because the applicant does not seek to challenge the parts of Judge Burns’ decision in which he rejected her application to re-locate Y to Germany I do not propose to address those aspects of his judgment.1

[7] Of the number of concerns that Judge Burns expressed about the proposed relocation…

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 EOJ v ACP

Details

AGLC: EOJ v ACP [2016] NZHC 276
Case: [2016] NZHC 276
Decision Date: 25 February 2016

CaseChat Overview and Summary

EOJ, the mother of a child named Y, appealed a Family Court decision that required her to pre-pay a bond of $50,000 if she wished to take Y to visit relatives in Europe. The applicant and respondent were previously married and Y is their only child. The Family Court judge, Judge Burns, ordered the bond to deter the applicant from failing to return Y to New Zealand, which was a concern of Judge Burns. The applicant sought leave to appeal the sum of the bond on the basis that it was too high, and so precluded her from travelling to Europe with Y.

The legal issues the court was required to decide were whether the applicant should be granted leave to appeal the bond of $50,000 imposed by the Family Court in respect of international travel, and if so, on what basis. The court held that the issue indirectly impacts on an “important matter affecting the child” as defined by s 16(2) of the Care of Children Act, namely changes to the child’s place of residence that may affect the child’s relationship with his or her parents and guardians. The court also held that the bond of $50,000 was a very large sum in comparison to the applicant’s financial state and earning potential, and that the parties had no prior notice that Judge Burns had it in mind to impose a pre-paid bond of $50,000 before Y could accompany her mother on visits out of New Zealand.

The court granted leave to appeal, and reserved leave to the parties to file memoranda on costs. The court held that the considerations that it had identified met the legal requirements for the granting of leave to appeal. The applicant’s proposal in the Family Court was that, if re-location were permitted, the respondent should visit Germany once a year and that Y should also return to New Zealand once a year. The respondent contended that he had experienced significant difficulties obtaining contact with Y while they were living in the same city and so he did not have any confidence that the applicant would facilitate a relationship between them from the other side of the world. He stated that he did not have the financial resources to implement the proposed visitation arrangements. Judge Burns was concerned about future contact between Y and her father in the event that the relocation proceeded. He did not think it was realistic to suggest that the parties would be able to pay the costs associated with international travel from New Zealand to Germany (or vice versa) twice a year, which he estimated to be at least $10,000 per year.

Regarding the bond of $50,000, the Judge ordered: I direct that mother can go back at any stage to Germany for the purposes of a holiday so she can reconnect with her family and if she does so the child is to be left in the care of father while the mother is away. If she wishes to take the child to Europe then there will have to be pre-payment of a bond held for the period of time while she is away which would be forfeited in the event that she fails to return the child back to New Zealand, and that bond is set at the sum of NZ$50,000. Prior to her departure there will need to be orders made or agreements reached between the parents with respect to the provisions of the Hague Convention and any other conditions associated with overseas travel.

In setting a bond of $50,000 Judge Burns recognised that the applicant would have difficulty making the bond payment: The applicant is legally aided and she could only obtain funding to cover an appeal against the decision to require a pre-paid bond of $50,000 before Y could be taken out of New Zealand for visits to Europe. It is going to be difficult for her to raise the money to pay for a bond to ensure ongoing contact and I am satisfied this is a case where I have to impose a very significant bond to ensure compliance if I was to allow relocation.

Orders