Fransson v Fransson
[2022] NZHC 1749
•20 July 2022
NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE
CIV-2022-435-2
[2022] NZHC 1749
IN THE MATTER of an appeal pursuant to s 143 of the Care of Children Act 2004 BETWEEN
ALBERT FRANSSON
Appellant
AND
KIRSTY FRANSSON
Respondent
Hearing: 21 June 2022 Appearances:
G Freeman for the Appellant
B M Inglis and T M Simpson for the Respondent S Spaak for the Children
Judgment:
20 July 2022
JUDGMENT OF COOKE J
Table of Contents
Relevant background[3]
Decision under appeal[10]
Arguments on appeal[13]
Striking out care of children applications[18]
Was the correct approach applied by the Family Court?[30]
What orders should this Court make?[37]
Conclusion[51]
FRANSSON v FRANSSON [2022] NZHC 1749 [20 July 2022]
[1] Mr Fransson appeals from the decision of the Family Court striking out his parenting and guardianship applications.1 Mr Fransson lives in a country in Europe. His former wife, Ms Fransson lives with their children in New Zealand. They initially lived together in the European country and the children were born there, but the family subsequently moved to New Zealand. Mr Fransson then moved back to the European country for economic reasons, and the relationship subsequently broke down. Mr Fransson then made the application seeking that the children return to his care in the European country. Ms Fransson subsequently successfully applied to have his application struck out. This is the decision under appeal.
[2] The essential issue on appeal is whether it was appropriate for the application to be struck out by the Family Court under r 193 of the Family Court Rules 2002 (the FCR), including whether this rule was correctly applied.
Relevant background
[3] Mr Fransson and Ms Fransson lived together in the European country between November 2003 and September 2015. They were married during a visit to New Zealand in 2009. The first child was born in 2009, the second in 2012 and the third in 2014. The children are all citizens of that country.
[4] In September 2015 Ms Fransson returned to New Zealand with the children, then aged almost six, three and 17 months. Mr Fransson followed them in November. There is a dispute between the parties over whether this was a move to New Zealand as a trial period only.
[5] Mr Fransson returned to the European country in August 2016 for financial reasons, and has not returned to live in New Zealand since then, in part because of the health of his mother. In January 2017 Ms Fransson advised of her decision to separate from Mr Fransson and that she would remain in New Zealand with the children contrary to his wishes. In November 2017 he returned to New Zealand for four months to see the children. They attempted mediation to resolve which country the children would then live in without agreement.
1 Fransson v Fransson [2021] NZFC 11755.
[6] In February 2018 Mr Fransson returned to the European country and filed the application for a parenting order, and a guardianship direction that the children relocate to the European country. The application was filed in July 2018 and the opposition in August. Mr Fransson visited the children in January 2019 and 2020 and had almost daily contact by Zoom or other means. This continues. As a consequence of COVID-19 Mr Fransson was not able to make further visits to New Zealand.
[7] A fixture was allocated for Mr Fransson’s application in early 2020. That was not able to proceed. A further fixture was then allocated in August 2020 but it also did not proceed. Mr Fransson could not come to New Zealand for the hearing as a consequence of COVID-19 and he did not want the application to proceed without his presence. I was advised that the more recent use of remote technology for hearings in the Family Court, and the greater comfort that participants now have in doing so, was not evident in 2020, and that this led to the decision that the hearing would not proceed.
[8] The application was then subject to a series of case management hearings during late 2020 and the first half of 2021. On 30 July 2021 there was a telephone conference. Following that conference the Judge (not the Judge who subsequently heard the strike out application) issued a minute confirming what had been discussed. He recorded the background and said:2
I have expressed the very clear view, and I am comfortable being on record as expressing this very clear view, that Mr [Fransson’s] application for relocation now has no reasonable prospects of success. That is not to say at all that his application might not have had some prospect of success when it was filed, or even at the beginning of last year. But the passage of time and the COVID situation means that I cannot conceive of the Court making a decision which would disturb what is now a well settled situation for the children in New Zealand and requiring them to live in [the European country]. On the assumption that Ms [Fransson] would choose to remain in New Zealand, it would be an impossible situation.
I accept that it is also an impossible situation for Mr [Fransson]. He cannot come here to see the children; they cannot got here and see him at the moment: the same issues arise in reverse. I just cannot see how a Court could responsibly make a decision for relocation in circumstances which exist now and which are likely to exist well into the future.
2 Fransson v Fransson, [30 July 2021] at [4]–[6].
I am really asking Mr [Fransson] to reflect on whether or not he pursues his application. Because if he does, Ms Inglis signals on behalf of Ms [Fransson] an application to dismiss his relocation application would be filed, and I think the prospects of success of the application are high.
[9] Mr Fransson subsequently advised that he did still wish to pursue his application and, perhaps not surprisingly given the Judge’s indication, by application dated 17 September 2021 Ms Fransson applied to strike out the application.
Decision under appeal
[10] In the decision under appeal dated 14 December 2021 the Judge carefully set out the facts that were agreed, and those that were in dispute, the relevant principles in relation to strike out from the authorities, as well as those arising under the Care of Children Act 2004 (COCA). The relevant principles under that Act were then addressed by the Judge with reference to the facts of the case. When doing so the Judge referred to reports from counsel for the child, and an earlier report from a psychologist dated 12 February 2019 under s 133 of the Act obtained for the purpose of Mr Fransson’s initial application filed in 2018.
[11] The Judge then made findings based on the evidence before the Court. They including a finding on the likelihood of Ms Fransson returning to the European country if the children relocated there. She referred to a report of Ms Fransson’s psychologist who had said that she would be at risk of depression if she moved to the European country. The Judge then found that Ms Fransson would not move with the children. The Judge said:3
Mr [Fransson’s] case, therefore, must be assessed on the basis that Ms [Fransson] would not return to [the European country] with the children if the Court ordered them to relocate. The issue is whether Mr [Fransson’s] proposal that they relocate to [the European country] without their mother has no reasonable prospect of success. That must be assessed based on the “best case” presented by Mr [Fransson] considering the welfare and best interests of the children, guided by the principles in s 5 of the Act and the children’s views.
[12] Then after carefully considering the principles under COCA in light of the evidence she reached the following conclusions:4
3 Fransson v Fransson, above n 1, at [42].
4 At [71]–[73] (footnotes excluded).
The conclusion I reach is that Mr [Fransson’s] application for relocation does not have a reasonable prospect of success. The advantages to the children continuing to live in [New Zealand] with their mother, where they have been settled for over five years, outweighs the disadvantages to them of moving to [the European country] without their mother. They have been able to express clear views about their wish to remain in New Zealand but to see their father in New Zealand and [the European country] as soon as that can be safely arranged. The prospect of a move to [the European country] while the world is grappling with the COVID pandemic would result in them moving to [the European country] without their mother. The evidence points to likely adverse impact on the boys if that were to happen.
If this process were to continue, it would require further input from the children through an updated psychological report and further inquiries of Lawyer for Child. There is no prospect of [Ms Fransson’s] position changing in the foreseeable future because of her personal concerns regarding a move to [the European country]. Therefore, the decision a court would have to make is stark: should the children move to [the European country] without their mother or remain in New Zealand without their father? Given how settled they are in New Zealand, the strength of their relationships with their mother, their developmental stages, the likely adverse effect on the younger boys of separation from their mother, the frequent indirect contact to their father and the likelihood of face to face contact in New Zealand in 2022 and the children’s views in favour of remaining in New Zealand, I find here is no reasonable prospect of a court finding that the children should move to [the European country].
The right to a full hearing, including the ancillary right to test the evidence, is an important right that should not be lightly put aside. However, if the Court finds that there is no reasonable prospect of success on the “best case” put forward on behalf of a parent, it must go on to consider the impact on the children of continuing delay. Decisions for children must be made in a timeframe that is appropriate to the children’s sense of time. I cannot see that it meets the children’s timeframe to allow these proceedings to continue for what would likely be another nine months, given my assessment that there is no reasonable prospect of a court finding that the children should relocate to live in [the European country].
Arguments on appeal
[13] On appeal Ms Freeman argues that the Family Court has misapplied the strike out power. The authorities on the application of r 193 of the FCR indicate that the best case of the party whose proceeding is subject to the strike out application should be assumed, and the Court must reach the conclusion that even taking the best case the application could not succeed. Here there were important questions of disputed fact and on that basis alone the application should not have been struck out. Rather than proceeding on Mr Fransson’s best case, the Judge made findings on disputes of factual issues on the balance of probabilities. This was most significant in relation to the Judge’s finding that Ms Fransson would not accompany the children if they relocated
to the European country. That finding was contrary to what Ms Fransson had previously advised as evidenced by the 2019 psychologist’s report. Her change of position was a contested issue of fact that should have gone to a full hearing. Given this, and other alleged errors of fact, the strike out power had been misapplied.
[14] For Ms Fransson, Ms Inglis contended that whilst the Judge had made a finding that Ms Fransson would not travel to the European country, this factor was relevant to the s 5 principles under the Act. The Judge had evaluated the evidence critically. The requirement that a party’s best case be considered did not require the uncritical acceptance of all the evidence put forward by that party. In any event, even assuming the best case, the circumstances here made it clear that it was not in the best interests of the children to be relocated to the European country. Section 4 of COCA was paramount and these proceedings have now been before the Family Court for years.
[15] Counsel for the child supported the judgment under appeal. She updated the Court on the views of the children, and also submitted it would now be seriously detrimental to the children for the issue on which country they now lived in to be reopened.
[16] There is no dispute between the parties on the approach to be applied by this Court on appeal. It proceeds on the basis set out by the Supreme Court in Kacem v Bashir.5
[17]It seems to me that the appeal turns on three related issues:
(a)Can applications in relation to the care of children under COCA be struck out under r 193 of the FCR, and if so in what circumstances?
(b)If r 193 can be applied, did the Court err in failing to assume Mr Fransson’s best case?
(c)What is the appropriate remedy to provide if there has been an error in the Family Court’s approach?
5 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
Striking out care of children applications
[18] The first question is whether it is appropriate to strike out care of children applications made under COCA pursuant to r 193 of the FCR because the application has insufficient prospects of success. For the reasons set out below I have concluded it is not. Any such application must be addressed under s 140 of COCA, and meet the requirements of that section.
[19] It is clear from r 193, and from the authorities in relation to that rule, that the Family Court does have the procedural power to strike out proceedings in that Court. But, for the reasons outlined below, resorting to this procedural power is not appropriate in relation to proceedings under COCA. That is because proceedings relating to the care of children matters under COCA need to be addressed in the manner contemplated by that Act. Section 13 provides that, except as otherwise provided, the Act effectively operates as a code. It is not a complete code — for example the provisions of other legislation would still be applicable6 — but it comprehensively regulates how care of children matters are to be addressed, including how they are to be approached by the Court procedurally.
[20] There is a power to summarily dismiss proceedings relating to the care of children that is part of that regime. Section 140 provides:
140 Power to dismiss proceedings
The court may dismiss proceedings before it under this Act if it is satisfied—
(a)that the proceedings relate to a specified child, and that the continuation of the proceedings is, in the particular circumstances, clearly contrary to the welfare and best interests of the child; or
(b)that the proceedings are frivolous or vexatious or an abuse of the procedure of the court.
[21] It is this standard that needs to be met before COCA proceedings can be struck out. There is an effectively identical power in s 206B of the Oranga Tamariki Act 1989. There is also a power in s 141 of COCA to restrict the commencement of
6 See DP v Department of Child, Youth and Family Services [2008] NZFLR 896 at [51].
proceedings instituted vexatiously, and under s 139A leave is required to commence substantially similar proceedings in relation to matters previously decided under particular sections, including applications under s 48 for parenting orders, or for the variation or discharge of parenting orders under s 56.
[22] Section 140 contemplates proceedings being dismissed in two situations. The first is where the existence of the proceedings by themselves are clearly contrary to the welfare and best interests of the child. The second is when proceedings are frivolous, vexatious or an abuse of procedure. In Dillon v Chief Executive, Ministry of Social Development Williams J said of these powers:7
… Sections 206B and 140 are unique to the family jurisdiction. They take the pre-emptive power of the Family Court well beyond the usual standards of the frivolous, vexatious and abuse of process grounds that are the standard thresholds for the strike-out jurisdiction in the general courts. I infer that wider powers than those are necessary because proceedings over children can, in and of themselves, be damaging to, and indeed abusive of, those children. This wider power is necessary because children are uniquely vulnerable to what elsewhere is called “systems abuse”.8 Given that both CYPFA and COCA prioritise the welfare and interests of the child or young person, the Family Court must be vigilant to avoid allowing its own processes to become damaging of that which it must protect, whether intentionally or inadvertently.
[23] The points made by Williams J are of key significance. The COCA has detailed principles and procedures for consideration of care of children matters. For example, the role of counsel for the child and the views of the child as contemplated by ss 6 and 7 of the COCA are important as Williams J subsequently emphasised. The obtaining of experts reports such as psychologist reports under s 133 are also part of the regime. It is true that under s 133(3) a report is only required if it is “essential” for the proper disposition of the application, but this would not uncommonly be so, and directing the obtaining of such a report is within the discretion of the Family Court Judge.9
[24] This regime does not sit easily with an ability to dismiss COCA applications summarily. The Act generally contemplates detailed information coming before the Court, and the Court making an overall evaluation in light of the circumstances of the
7 Dillon v Chief Executive, Ministry of Social Development [2017] NZHC 1487 at [32]. See also at [33]–[37].
8 See the use of this term in “Best Practice Guidelines for Lawyer for Child” Family Law Section, New Zealand Law Society at [5.7].
9 See Newton v Family Court at Auckland [2022] NZCA 207.
case. Section 140 exists to ensure that when the proceedings themselves have clearly become contrary to the welfare and best interests of the child, or otherwise an abuse of process, they may be dismissed.
[25] Given the overall regime, and the requirements specified in s 140, the summary dismissal of an application based on an assessment of the prospects of success can only occur when the continuation of the proceedings themselves have clearly become contrary to the welfare and best interests of the child, or otherwise an abuse of the process of the Court. The merits, or lack of them, may be relevant because the pursuit of an application that has very low prospects of success may be more likely to be contrary to the welfare and best interests of the child.10 But the pursuit of the proceedings must still reach the high threshold — as Williams J summarised it, when they are damaging to, or abusive to the children — before they can be struck out. The reference by Williams J in Dillon to the earlier decisions of the Family Court concerning the ability to strike out proceedings because of the lack of prospects of success should be understood with these ultimate requirements in mind.11
[26] Given the existence of s 140, and the regime generally created by COCA, I see no room to revert to the alternative general power to strike out proceedings in the Family Court under r 193 of the FCR based on the lack of prospects of success. That is particularly so when the test for so striking out the proceedings sets a different threshold that does not require the proceedings to be clearly contrary to the welfare and best interests of the child, or otherwise an abuse under s 140(b).
[27] Rule 193 of the FCR is essentially the same as r 15.1 of the District Court Rules 2015 and r 15.1 of the and High Court Rules 2016 (HCR) which allow a proceeding to be struck out. There are subtle differences in wording. Rule 15.1(1)(a) of the HCR refers to striking out a proceeding where there is “no reasonably arguable cause of action” whereas r 193(1)(a) refers to there being “no reasonable basis for the application”. In Bean v Bean Katz J referred to these grounds being analogous, and that the traditional approach applied to r 15.1 should be applied to r 193.12 She noted,
10 See RAW v CR [2012] NZHC 1470, [2014] NZFLR 755 at [59]–[60].
11 Dillon v Chief Executive, Ministry of Social Development, above n 7, at [29]–[31].
12 Bean v Bean [2019] NZHC 20 at [10]–[14].
however, that given proceedings are commenced in the Family Court without detailed pleadings it may also be necessary to consider the affidavits filed.13 That point was reiterated by Lang J in TD v O where he indicated that “[s]trike out applications in the Family Court are therefore likely to focus on whether the evidence contained in the affidavits is sufficient to disclose a reasonable basis for the claim rather than whether the formal pleading discloses a tenable cause of action”.14
[28] Both these High Court decisions about r 193 were, however in relation to claims under the Family Protection Act 1955. Such proceedings can be brought in the High Court as well as the Family Court.15 Such a claim in the High Court would need to be set out in a statement of claim, but in the Family Court the pleading is a more sparce document, so it is necessary to consider the affidavits filed with such an application. But the power in r 193 is not materially different from the powers in the District Court and the High Court. The test set out by the Court of Appeal in Attorney- General v Prince must still be met.16 The factual allegations advanced in the application must still be assumed to be true. Factual findings are not generally to be made on such applications. The claim advanced must be clearly untenable. The Court must be certain that the claim cannot succeed. The jurisdiction is to be exercised sparingly and only in clear cases.
[29] It is also clear, in my view, that this rule cannot be used when Parliament has expressly considered when proceedings under particular legislative schemes can be summarily dismissed. For COCA matters Parliament has turned its mind to that question and legislated when that may happen through ss 139A, 140 and 141. Parliament otherwise contemplates that the COCA regime will be applied. Section 140(a) has a different focus from r 193. The requirement is that the relevant proceeding is clearly contrary to the welfare and best interests of the child. Section s 140(b) is then similar to the other grounds for strike out before the general courts. Resort to r 193 of the FCR should not be made to circumvent these requirements. As I have explained the merits of the application may be relevant to s 140 applications, but there is a different focus, and different tests.
13 At [12]–[14].
14 TD v O [2019] NZHC 2490 at [16].
15 Family Protection Act 1955, s 3A.
16 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267–268.
Was the correct approach applied by the Family Court?
[30] Here the application before the Family Court was made on the basis of r 193 of the FCR, and the Court’s ultimate conclusion was that Mr Fransson’s application for relocation “does not have a reasonable prospect of success”.17
[31] The Judge did refer to s 140, however, and she set out passages from the judgment of Williams J in Dillon v Chief Executive Ministry of Social Development.18 She also expressly addressed the best interests of the child, and in her conclusion also addressed the children’s best interests in addition to the finding that the application did not have reasonable prospects of success. But she did not expressly apply the requirements of s 140, and particularly the requirement that the proceedings themselves had clearly become contrary to the welfare and best interests of the child. The test applied was accordingly not the correct one for striking out COCA proceedings.
[32] I also accept that the Judge did not assume that the contentions being advanced by Mr Fransson were factually correct when assessing whether he had a tenable claim. The Judge conducted a broader assessment, taking into account wider matters such as the views of the children as reported by the counsel for the children, and she applied particular provisions of COCA in that respect. Indeed it can be said that the Judge embarked on the kind of analysis one would expect of a COCA proceeding, but subject to the fact that the witnesses who had provided affidavits were not subject to cross- examination, and that the Court did not have an up-to-date psychologist’s report under s 133 of COCA. In this sense the hearing was a kind of hybrid falling in-between a full COCA hearing, and an interlocutory hearing held on a strike out basis.
[33] All of this is understandable given that COCA matters require full assessment and evaluation. But it demonstrates why a strike out hearing based on the prospects of success under r 193 of the FCR is not appropriate for COCA matters. COCA matters need to be addressed in accordance with the criteria referred to in that Act, and these will normally involve broad assessments. But there will still be cases where the
17 Fransson v Fransson, above n 1, at [42].
18 At [25]–[30]; Dillon v Chief Executive Ministry of Social Development, above n 7.
conduct of the proceedings themselves have become oppressive such that they are clearly contrary to the welfare and best interests of the child under s 140 thresholds, or the other thresholds in ss 139A and 141.
[34] One aspect of the Judge’s approach of significance was the finding that Ms Fransson would not travel with the children back to the European country if they were relocated, and that the application would have to be assessed on that basis.19 This was a disputed question of fact — Mr Fransson did not accept this. And it is notable that in the psychologist’s s 133 report provided in February 2019 the psychologist reported that Ms Fransson had said she believed she would return to the European country if a decision was made that they would live there. Making a finding of fact to the opposite effect on the basis of affidavit evidence is not consistent with the approach adopted under r 193 of the FCR. It was also close to a decisive finding relating to the question of where the children would reside. I accordingly accept Mr Freeman’s submission that the Judge was in error in making that finding.
[35] There is a further related aspect. The Court’s analysis proceeded without an analysis of the question of whether Mr Fransson would relocate and live in New Zealand if the children remained here. That may have been an equally important consideration. The analysis was limited to the potential of him visiting once COVID- 19 restrictions were lifted. The evidence was that Mr Fransson had originally left New Zealand for economic reasons. There is also an issue with his mother’s health. In addition, at the time when the strike out application was heard New Zealand’s borders were closed for COVID-19 reasons. But the application warranted consideration of the prospect of relocation for both parents.
[36] I also have a related difficulty with the application being assessed on the assumption that one or other parent would, or would not move to where the children were to reside. Whether either parent moves is ultimately a matter to be decided by them. The Court could properly proceed on the basis that there was a significant risk that the particular parent would make a decision not to move, but findings that went
19 Fransson v Fransson, above n 1 at [42].
further than that might have been problematic given that these steps would ultimately depend on the intentions of the relevant parent.
What orders should this Court make?
[37] For the above reasons I accept that the Family Court has erred when striking out Mr Fransson’s application. Any strike-out application could only have occurred in accordance with the test in s 140 of the COCA. In any event the Court has made factual findings of significance for the outcome of the application which were not appropriate at an interlocutory hearing under r 193. Neither would they have been appropriate under s 140, which should also proceed on the basis of the relevant party’s best case if s 140 is applied before a full hearing.
[38] The appeal to this Court arises under s 143 of the COCA. Under s 143(4) the High Court Rules 2016 apply to the appeal. Part 20 of the High Court Rules accordingly applies, and under r 20.19 the Court has broad powers on appeal, including the power to make any decision that it thinks should have been made, or any other order the Court thinks just.
[39] This gives rise to the most difficult issue on this appeal. It arises from the submission for Ms Fransson, and also of counsel for the child, that there is no prospect in Mr Fransson’s application for relocation succeeding, and that the continuation of the uncertainty that would arise if the Court ordered his application to be considered on its merits would now clearly be detrimental to the children. Of particular significance are the submissions of counsel for the child. She explained that the three children have a very positive relationship with both their mother, and their father. The relationship with their father occurs mainly be remote means, but this contact is almost daily. That the children have a very positive relationship with their father as well as their mother is of considerable credit to both parents. The relationship between the parents is a strained one, but they have both put the interests of their children first.
[40] The concern expressed to me by Ms Spaak on behalf of the children is that any continuation of proceedings which created an uncertainty over where the children are to live would potentially undermine the goodwill that presently exists. Ms Spaak explained that she was able to discuss the situation with the eldest child in particular,
and that he had been considerably relieved when he had been told that the proceeding had been resolved following the Family Court decision.
[41] As I have stressed, the COCA has an careful regime that regulates how decisions should be made. Under s 4(2)(a)(i) the Court is obliged to take into account that “… decisions affecting the child should be made and implemented within a timeframe that is appropriate to the child’s sense of time”. The Judge referred to that principle here as it is plainly relevant. It is now nearly seven years since the family moved to New Zealand. It is approximately four years since Mr Fransson’s application was first filed. The delay first arose in relation to attempts for the parties to resolve their differences, and then because of the unfortunate impacts of COVID-
19. The proceedings have then procedurally gone off course as a consequence of the views of the case management Judge who indicated in July last year that Mr Fransson’s application now had no reasonable prospects of success. Then following a thorough assessment following a hearing in November last year, the Judge struck out Mr Fransson’s application because it had no reasonable prospects of success.
[42] I agree that the prospect of the Court making orders contemplating that the children will relocate to the European country following a fuller hearing are remote. As indicated, the hearing and assessment engaged in by the Family Court on the present application was still a full one and in the nature of a hybrid between a full hearing and a strike out hearing. The affidavit evidence was extensive, there were reports from counsel for the child, and a s 133 report. It was close to a full hearing. The Judge has found that Mr Fransson’s application has no reasonable prospects of success. The family are now well settled in New Zealand. Ms Fransson has been the primary caregiver for a number of years. The children will not have full access to their European culture and family, but equally they would be deprived on their New Zealand culture and family if they relocate. In the absence of circumstances that suggest that the children should be uprooted from their current environment such orders are unlikely to be made.
[43] More significantly I accept that the continuation of that application on its merits, which would not only involve further assessments by counsel for the child, but
also a likely need for an updated psychological report, would likely be very destabilising for the children, and the continuation of such issues will be adverse to the relationship that exists between the children and their parents, and particularly the children and their father. I was advised that any substantive hearing directed now would not be before the end of this year, and it would possibly be next year. Directing that such a hearing take place would effectively put the parties, and the children, back to square one some four years after the application was first filed. These proceedings have now been on foot for much of the childrens’ lives, especially in the case of the younger children.
[44] I am troubled that Mr Fransson has not had a decision on where the children should live properly assessed at a full hearing. I am also concerned that, at least in part, the failure to do so has arisen as a consequence of an observation made at a case management conference in July 2021. Had the application been set down for a three day hearing at that stage it would likely have been determined by now.
[45] As I have emphasised, the COCA regime is an elaborate one. It has at its centre the best interests of the child. But it also involves procedures that involve those who are to have the responsibility for the care of the children participating. Their buy-in is important. I see that concept as being within the principles referred to in s 5 of the COCA. Participation in the procedures allows the parents or caregivers to fully engage in the processes to determine issues such as where the children will live. Such participation is to be encouraged as it is ultimately in the best interests of the children that the parties understand that a thorough and fair process is being followed. Striking out proceedings so that those procedures are not followed should only happen in the rarest of cases. I note that costs awards are less likely in the Family Court precisely because it is important that genuine issues be addressed by Family Court proceedings.20
[46] Professor Mark Henaghan has argued that it is important for relocation decisions to be based upon principle rather than more discretionary decision-making
20 Hawthorne v Cox [2008] NZCA 146 at [16]–[28].
by judges.21 He has also said that “[a] responsible legal system would not encourage numerous appeals in relocation cases” because “[t]his is not law; this is the application of personal preference. Once considered and applied, the matter has been decided, and people should move on with their lives …”.22 In approaching the present case I have sought to apply the principles of the COCA, recognising the assessment that has already been made by an experienced Family Court Judge.
[47] The present case is not the type of case that would normally fall within s 140. That is because both parents have been behaving constructively. Mr Fransson has simply made an understandable application that the children return to the place where they were born and originally raised. But the continued pursuit of the proceeding does now engage the concepts in s 140(a). The chance of the Court now ordering relocation would be remote, and the continued existence of the proceeding will only cause further anxiety, and risk undermining the positive relationships that have been built up. The delays in the resolution of the proceeding have been, in part, beyond Mr Fransson’s control due to the implications of COVID-19 and because of the proceedings taking a procedural diversion, partly at the Court’s instigation. The relevant timeframes need to be considered from the child’s perspective in light of the principle referred to in s 4(2)(a)(i). The criteria arising under s 140(a) apply.
[48] Counsel advised that there were further steps that would now need to be addressed on the assumption that the children would stay in New Zealand. That includes questions concerning the children potentially travelling to the European country for holiday periods. One of the issues is the cost of doing so, particularly given they are too young to travel unaccompanied, and Ms Fransson’s advice is she does not have the resources to pay for that travel. I was advised, however, that the parties believe that they can reach agreements on these issues.
[49] For these reasons it seems to me that it is now clearly in the best interests of the children for the parties to focus their attention on the terms and conditions that will allow the children to spend significant time with their father, and that side of the family
21 M Henaghan “Relocation Cases - the rhetoric and the reality of a child’s best interests – a view from the bottom of the world” (2011) 23 CFLQ 226.
22 At 248.
in the European country. But that needs to be on the basis that a final decision has been made that the children will live in New Zealand.
[50] I should make it clear, however, that this is a case decided on its own particular circumstances, and that the decision involves the exercise of this Court’s power on appeal under r 20.19 of the HCR.
Conclusion
[51] For these reasons the appeal is allowed in part to the extent that I conclude that the Family Court erred, but I uphold the Family Court decision on alternative grounds under r 20.19 HCR — namely that Mr Fransson’s application be dismissed under the grounds contemplated by s 140(a) of the COCA.
[52] If there are any issues about costs I will receive memoranda that must be filed and served within 10 working days, and responded to within 10 working days. My preliminary view is that costs should lie where they fall.
Cooke J
Solicitors:
Freeman Law, Masterton for the Appellant Belinda Inglis, Lawyers for the Respondent Spaak Law, Greytown for the Children
2
3
0