IA v RRN - [2017] NZHC 1268

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-003138 [2017] NZHC 1268

UNDER Care of Children Act 2004

IN THE MATTER

of Application for Leave to Appeal Against a Judgment of the Family Court under section 143(2) of the Care of Children Act 2004

BETWEEN

IA Appellant

AND

RRN Respondent

Hearing: On the papers

Counsel:

S Sharma for the Appellant
G M Cameron for the Respondent
P Leʼauʼanae for the Child

Judgment:

12 June 2017

JUDGMENT OF MUIR J

This judgment was delivered by me on Monday 12 June 2017 at 11.00 am Pursuant to Rule 11.5 of the
High court Rules.

Registrar/Deputy Registrar Date:…………………………

IA v RRN [2017] NZHC 1268 [12 June 2017]

Background

[1] On 1 December 2014 the Family Court at Auckland made orders for relocation of the parties’ son “I”, now aged nine, from Auckland to Sydney Australia. That order was made on a without notice application. The Minute made by Judge Boshier was in terms:

The applicant seeks permission to relocate to Australia. It is rare to contemplate this ex parte, but so concerned am I as to violence, control and retribution that I consider it risky to direct this to proceed on notice. That application is granted.

[2] The matter came before me on 3 May 2017 by way of an appeal from that order.

[3] Prior to the hearing, Mr Cameron for the respondent filed a submission accepting that, if the Family Court’s order was made on a final basis, there was no jurisdiction for it to do so on a without notice application.

[4] It is apparent from other interim and temporary orders made by the Court that day (and identified as such) that the relocation order was indeed intended to be final. To do so on any other basis would in any event be highly unusual, given that once a child is relocated to another country issues of continuity of residence in that jurisdiction will arise which will, in turn, inevitably influence any later final decision. Mr Cameron’s concession is therefore entirely responsible.

The Family Court Rules

[5] The matter is governed by rr 416H and 416J of the Family Court Rules 2002. Rule 416J allows the making of interim orders on a without notice application in which case the Court must direct that the application proceed to a full hearing in accordance with r 416U.

[6] Significantly however, r 416J provides that a final order can only be made on a without notice application if the application is made…

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 IA v RRN

Details

AGLC: IA v RRN [2017] NZHC 1268
Case: [2017] NZHC 1268
Decision Date: 12 June 2017

CaseChat Overview and Summary

The case of IA v RRN involves an appeal against a Family Court order permitting the relocation of the parties' son "I" from Auckland, New Zealand to Sydney, Australia. The appeal was brought by IA, the father, against the decision made by the Family Court in December 2014. The Family Court granted the relocation order without notice, a decision which IA challenged on the basis that it was made without jurisdiction. The High Court considered the appeal on 3 May 2017, and subsequently allowed the appeal on 12 June 2017.

The primary legal issue in this case was whether the Family Court had jurisdiction to make the relocation order without notice. The Family Court Rules, specifically rules 416H and 416J, were examined to determine the circumstances under which such an order could be made. It was found that the Family Court's order did not fall within the exceptions that would allow it to be made without notice, as it affected the interests of another person and did not meet any of the specific conditions outlined in the rules. Consequently, the Family Court order was deemed to have been made without jurisdiction.

In light of the appeal being allowed, the relocation order was set aside. RRN, the mother, indicated her intention to discontinue any further proceedings in the New Zealand Family Court and instead pursue a parenting order in the Family Court of Australia. She also stated that she would not return "I" to Auckland until proper protections were in place and would actively cooperate in ongoing contact with IA in Australia.

The court's decision to allow the appeal and set aside the relocation order highlights the importance of adhering to procedural rules and ensuring proper jurisdiction when making significant decisions affecting children. The outcome also reflects the need for the parties to consider the best interests of the child, as well as the practical implications of such decisions on the child's well-being and stability.

Orders