Martens v Simons - [2025] NZHC 2375

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, 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 NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2025-443-000033

[2025] NZHC 2375

UNDER the Care of Children Act 2004

IN THE MATTER OF

an appeal to the High Court against a decision of the Family Court at New Plymouth

BETWEEN

JAMES MARTENS

Appellant

AND

HELENA SIMONS

Respondent

Hearing: 24 July 2025 (via VMR)

Counsel:

L F Soljan and R M Webb for Appellant

R S P Lyttelton and E A A Hart for Respondent L P Manning – Lawyer for Children

Judgment:

21 August 2025

JUDGMENT OF LA HOOD J

[Redacted]

MARTENS v SIMONS [2025] NZHC 2375 [21 August 2025]

Should the Court allow two children to relocate from New Plymouth to the Hawke’s Bay with their mother?

[1] Mr Martens appeals a Family Court decision allowing his ex-wife, Ms Simons, to relocate their two children, Lena, aged 12, and Levi, aged eight, from their current home in New Plymouth to the Hawke’s Bay.1

[2] Ms Simons wishes to relocate to live with her fiancé, who has the shared care of his two children aged 13 and 17, and to be closer to her twin sister and her sister’s husband and two children.

[3] Ms Simons is [redacted] and Mr Martens is of [redacted] origin but is a [redacted] citizen. They met while they were living in [redacted] and initially relocated to [redacted] where Mr Martens’ extended family resides. They lived in [redacted] for 10 years and both children were born there.

[4] The Family Court found that the parties’ intention was to eventually move to the Hawke’s Bay to be close to Ms Simons’ sister when they originally relocated to New Zealand, and that they only went to New Plymouth because Mr Martens obtained a job there. Mr Martens says he considered New Plymouth to be the final destination.

[5] In the four to five years the couple lived in New Plymouth, the children have adapted well and are thriving. Lena has expressed the clear wish to move to Hawke’s Bay to be closer to her aunt, uncle, cousins, and soon-to-be stepsiblings. She is looking forward to starting at the same secondary school as her soon-to-be stepsister, with whom she has formed a close relationship. Lena and Mr Martens currently have a difficult relationship, although he says the relationship is slowly improving.

[6] In contrast, Levi has expressed a wish to stay in New Plymouth and remain with his established school, football club and friendships. However, Levi has also said that he does not want to be separated from Lena. Mr Martens has a strong relationship with Levi. The Family Court Judge found that Levi’s opposition was based on the

1 [Simons] v [Martens] [2025] NZFC 5925 [Decision under appeal]. The parties and children have been given fictitious…

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 Martens v Simons

Details

AGLC: Martens v Simons [2025] NZHC 2375
Case: [2025] NZHC 2375
Decision Date: 21 August 2025

CaseChat Overview and Summary

Martens appeals the Family Court decision to allow Simons to relocate their two children from New Plymouth to Hawke’s Bay. The appeal is dismissed. The primary consideration in relocation applications is the welfare and best interests of the child. Under the Care of Children Act 2004, the welfare and best interests of the child must be the first and paramount consideration in proceedings under the Act. In considering the welfare and best interests of a child in their particular circumstances, the court must take into account the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time, and the principles set out in section 5 that are relevant. The appeal was dismissed on the basis that the relocation of the children was in their best interests.

Orders