Fransson v Fransson - [2022] NZHC 1749

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…

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 Fransson v Fransson

Details

AGLC: Fransson v Fransson [2022] NZHC 1749
Case: [2022] NZHC 1749
Decision Date: 20 July 2022

CaseChat Overview and Summary

Fransson v Fransson is an appeal from a Family Court decision to strike out a father's application for his children to return to live with him in the European country where they were born and where he currently resides. The children currently live with their mother in New Zealand. The father's appeal was heard by Cooke J in the High Court. The judge held that the Family Court erred in applying the Family Court Rules to strike out the application but held that the application should be dismissed on the basis that it was not in the children's best interests for them to relocate to the European country. The appeal was therefore allowed in part, but the dismissal of the father's application was upheld on alternative grounds.

The appeal raised three issues: whether the Family Court has the power to strike out care of children applications under the Care of Children Act 2004 (COCA); whether the Family Court applied the correct approach in dismissing the father's application; and what remedy should be ordered. The judge held that the Family Court does not have the power to strike out applications under COCA because such applications must be addressed in accordance with the COCA, including the dismissal power under s 140 of the Act. The judge held that the Family Court erred in finding that the mother would not relocate to the European country with the children and that it should not have made findings of disputed facts at a strike-out hearing. However, the judge held that the Family Court's conclusion that the application had no reasonable prospects of success was correct, and the application should be dismissed under s 140(a) of COCA. The judge held that it was in the children's best interests for the application to be dismissed because the family is well settled in New Zealand, the children have expressed their wish to remain in New Zealand, and the continuation of the proceedings would be detrimental to the children.

Orders