Martens v Simons
[2025] NZHC 2375
•21 August 2025
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 names to protect the identity of the children.
understanding that Mr Martens would not move to the Hawke’s Bay, which the Judge said was in error.
[7] The Family Court concluded that Mr Martens has the ability to successfully relocate to the Hawke’s Bay. He has no partner in New Plymouth, owns no property, and has a sought-after professional skillset that will enable him to obtain employment. The alternative would be the mother’s fiancé relocating to New Plymouth, leaving his children in the Hawke’s Bay. This would impact on the children’s ability to strengthen their relationships with their aunt, uncle, cousins and soon-to-be stepsiblings. The Court therefore concluded that relocation was in the children’s best interests.
[8] Mr Martens submits that the Judge erred by: failing to properly assess the option of the children remaining in New Plymouth; analysing the disadvantages of the Hawke’s Bay option in a perfunctory manner; becoming sidetracked by irrelevant matters (such as the parties’ original intentions when moving to New Zealand); and paying scant regard to the impact of relocation on the children.
Decision under appeal
[9] Judge Burns summarised his reasons for granting the relocation application as follows:2
(1)To require mother to have her partner and sister relocate to the Taranaki involves impact on a much greater number of people than if father goes to the Hawkes Bay. His relocation impacts one person.
(2)I find that father is resilient and will be able to shift and obtain employment in Hawkes Bay if he chooses to do so. His functioning will not be adversely effected.
(3)That the original intent by both parties in shifting to New Zealand was to be closer to [Ms Simons’] sister who has always lived since she came to New Zealand in the Hawkes Bay area. That the only reason that they went to the Taranaki area was because [Mr Martens] obtained a job there. Whilst I accept it is a good job and there may be some disruption to him in pursuing other employment options that should not prevent [Ms Simons] moving on with her life and pursue her new relationship and be closer to her sister and niece and nephew.
2 Decision under appeal, above n 1, at [45].
[10] Before reaching those conclusions, the Judge set out the factual background and legal principles, and undertook an analysis of the evidence against those principles.
[11] The Judge made it a condition to the parenting order that Mr Martens not use alcohol while having care of the children and for 12 hours prior, due to his care of the children being compromised by his misuse of alcohol. The Judge was satisfied that with this condition in place, the children will be safe in the father’s care, and the issue of safety did not otherwise impact on the relocation decision.3
[12] The Judge noted that Ms Simons accepts the importance of the children’s relationship with their father,4 and the evidence shows she has made it a priority despite Mr Martens’ relationship difficulties with his daughter and his alcohol issues.5
[13] The Judge observed that Mr Martens heavily relied on the principle that there should be continuity of care. He was satisfied that this principle did not provide justification for the status quo. The Judge noted that the shared care arrangement would continue if Mr Martens relocated to the Hawke’s Bay, and that Mr Martens would have care as often as possible (taking into account travel time and logistics) if he remained in New Plymouth.6
[14] The Judge took into account the children’s views. As already mentioned, Lena wishes to move to the Hawke’s Bay, while Levi wants to remain in New Plymouth. The Judge placed significant weight on Lena’s views, as she was halfway through year eight and mature for her age. The Judge noted that Levi was only eight, and considered that a lot of his reasons for being opposed were based on the understanding that Mr Martens will not also relocate, which the Judge said was erroneous.7
[15] The Judge noted that, other than Mr Martens, all of the people with significant relationships with the children that are in New Zealand are in the Hawke’s Bay area,
3 At [25].
4 At [26].
5 At [37].
6 At [28].
7 At [40].
including their aunt (Ms Simons’ sister), her children, and Ms Simons’ fiancé and his children. The Judge considered the children relocating to the Hawke’s Bay would improve the children’s relationships with these people, and that all of these people moving to New Plymouth would cause greater disruption than Mr Martens moving to Hawke’s Bay. This meant that the balance of convenience favoured granting the application. The Judge accepted that the children’s relationship with Mr Martens would be negatively impacted if he continued living in New Plymouth, but considered he had the choice to relocate, particularly given his good chances of obtaining employment in the Hawke’s Bay.8
[16] The Judge accepted that Ms Simons’ reasons for wanting to relocate were rational, valid and genuine, observing that the parties originally moved to New Zealand so that they could reconnect with Ms Simons’ sister.9 The Judge accepted that Ms Simons would be happier in the Hawke’s Bay, which would have a flow on effect to the children.10
[17] The Judge considered Mr Martens’ reasons for not wanting to move were understandable, but that he had not made the necessary enquiries or genuinely looked at the option of living in the Hawke’s Bay. He accepted that the relocation will possibly have a negative effect on Mr Martens’ wellbeing and health, but found he is likely to maintain his wellbeing.11
[18] In addition to granting the application for relocation, the Judge made two alternative parenting orders. In the event that Mr Martens moved to the Hawke’s Bay, the present shared-care order was to continue.12 If Mr Martens remained living in New Plymouth, the Judge ordered that the children will be in the day-to-day care of their mother, having face-to-face contact with Mr Martens in the term holidays, over the summer holidays (and Christmas every other year), and where Mr Martens can make himself available in the Hawke’s Bay (with notice).13
8 At [33].
9 At [34].
10 At [38].
11 At [38]
12 The Judge modified one aspect of the parties’ communication protocol which is not relevant on appeal.
13 At [47].
Leave to appeal
[19] Leave is required to appeal the relocation order under s 143(2) of the Act because the order was made under s 46R. However, there is a right of appeal in respect of the parenting orders. Given the inextricable link between the parenting orders and the relocation order, and the obvious importance of the issues to the parties, there was no opposition to leave being granted in respect of the relocation order.14 I consider leave is clearly appropriate and grant it accordingly.
Approach on appeal
[20] It has been long established by the Supreme Court’s decision in Kacem v Bashir15 that relocation applications involve evaluative decisions requiring the Court to apply the approach articulated in Austin Nichols & Co Inc v Stichting Lodestar.16 I gratefully adopt Muir J’s summary of the required approach in Malcolm v Lloyd:17
[27] … The Court is to form its own opinion on the issues raised by the appeal. The onus is on the appellant to show that the judgment under appeal is wrong. Despite the fact that the decision appealed from is that of a specialist court, no particular deference is required to it. However, factual findings by the trial judge are, in the words of Heath J in Henderson v Morgan, “entitled to respect”. The appellate court must also be live to the credibility findings made by the trial judge, given the significant advantage he or she enjoyed in hearing the evidence. …
[28] As will be elaborated below, the primary consideration in this case is [the child’s] welfare and interests. Justice Duffy in B v B stated, and I adopt, the following in relation to how the Austin, Nichols principles apply in cases under the Act:
I must accept responsibility for determining what is in the best interests of the child. It also means that I should not confine myself to focusing on whether or not the Judge has committed an error of law or some procedural error in reaching his judgment.
14 Malcolm v Lloyd [2015] NZHC 1483 at [20]–[25].
15 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
16 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
17 Malcolm v Lloyd, above n 14, at [27] (footnotes omitted)
Relevant principles in relocation cases
[21] I gratefully adopt the Court of Appeal’s very recent summary of the applicable principles:18
[15] Under s 4(1) of COCA, the welfare and best interests of the child, in their particular circumstances, 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 s 5 that are relevant.
[16]Section 5 provides that:
The principles relating to a child’s welfare and best interests are that—
(a)a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in sections 9(2), 10 and 11 of the Family Violence Act 2018) from all persons, including members of the child’s family, family group, whānau, hapū, and iwi:
(b)a child’s care, development and upbringing should be primarily the responsibility of his or her parents and guardians:
(c)a child’s care, development and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:
(d)a child should have continuity in his or her care, development, and upbringing:
(e)a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:
(f)a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened:
(g)a child must be given reasonable opportunities to participate in any decision affecting them.
18 Drake v Drake [2025] NZCA 353 (footnotes omitted); referring to Kacem v Bashir, above n 15.
[17] In proceedings that involve guardianship of, day-to-day care for or contact with a child, s 6 requires that the child be given reasonable opportunities to express views on matters affecting them and those views must be taken into account.
[18] In Kacem v Bashir — a relocation case — the Supreme Court observed that the ultimate objective was to determine what outcome would best serve the welfare and best interests of the particular child in their particular circumstances. In making that determination the s 5 principles must each be examined to see if they are relevant and, if they are, must be taken into account along with any other relevant matters. Individual principles may have greater or lesser significance in the decision-making process, depending on the circumstances of individual cases.
[19] … The observations in Kacem v Bashir on relocation are therefore of assistance:
[23] At the highest level of generality the competition in a relocation case is likely to be between declining the application for relocation because the children’s interests are best served by promoting stability, continuity and the preservation of certain relationships, as against allowing it on the ground that the interests of the children are thereby better served. …
[24] Everything will depend on an individualised assessment of how the competing contentions should be resolved in the particular circumstances affecting the particular children. If, on an examination of the particular facts of a relocation case, it is found that the present arrangements for the children are settled and working well, that factor will obviously carry weight in the evaluative exercise. All other relevant matters must, of course, be taken into account and given appropriate weight in determining what serves the child’s welfare and best interests … The key point is that there is no statutory presumption or policy pointing one way or the other. …
[22] Both parties have referred me to a number of decisions that provide non- exhaustive lists of criteria against which a relocation decision might be considered. However, I agree with Muir J’s comments in Malcolm v Lloyd, adopting the approach of Harrison J in DMS v PAL, that what is involved is an intensely fact specific inquiry in which little assistance can be derived from other cases.19 Formulaic assessments by reference to checklists should be avoided.20 The assessment must be made against the statutory criteria, but the factors to be weighed are only those which are actually
19 Malcolm v Lloyd, above n 14, at [33]; citing DMS v PAL [2007] 26 FRNZ 684 at [26].
20 Malcolm v Lloyd, above n 14, at [34].
relevant in the particular case.21 What is required was captured by the Supreme Court in Kacem v Bashir:22
The judge’s task is to determine and evaluate the facts, considering all relevant s 5 principles and other factors, and then to make a judgment as to what course of action will best reflect the welfare and best interests of the children. While that judgment may be difficult to make on the facts of individual cases, its making is not assisted by imposing a gloss on the statutory scheme.
Issues on appeal
[23] As already noted, Mr Martens alleges a number of errors in the Judge’s reasoning. In essence, these complaints boil down to two allegations. First, that there was a failure to analyse and compare the benefits to the children of remaining in New Plymouth against the benefits of moving to the Hawke’s Bay. This includes Ms Simons’ evidence that she would remain in New Plymouth if the relocation application was not granted, and the risk that Mr Martens would not move to the Hawke’s Bay if the application was granted. Second, it was irrelevant to consider the reasons underlying Ms Simons’ desire to move, and that the parties’ intention was to eventually relocate to the Hawke’s Bay when moving to New Zealand.
[24] The grounds of appeal highlight the importance of analysing the substance of a decision rather than undertaking a forensic dissection of the way a Judge has chosen to express themselves. It is well established that imperfections in expression will not, on their own, amount to appealable errors.23 The question is whether there have been material errors in the reasoning process that caused the Judge to reach the wrong conclusion. In any event, even if there have been no material errors in the reasoning process, I am still required to form my own view about the Judge’s ultimate conclusion. If I am persuaded that relocation to the Hawke’s Bay compared to remaining in New Plymouth is not in the children’s best interests, I must allow the appeal irrespective of the process by which the Judge reached his decision.
[25] Against that backdrop, I will start by briefly addressing the alleged errors in the Judge’s reasoning. I will then turn to evaluate whether I am persuaded that the
21 DMS v PAL, above n 19, at [26].
22 Kacem v Bashir, above n 15, at [35].
23 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [37]; and Lim v Medical Council of New Zealand [2016] NZHC 485, [2016] NZAR 447 at [41].
Judge’s overall conclusion was wrong. However, I will first swiftly dispose of the submission that the Judge’s reference, at an early point in his decision, to his later conclusion that relocation should be granted supports an allegation of predetermination.24 It is common for modern reserved judgments to summarise or refer to later conclusions at an early stage to improve accessibility. It is plainly illogical to suggest that this indicates a court has predetermined the case. The submission is based on the patently incorrect premise that a reserved judgment is intended to be a chronological representation of the court’s thought processes.
Were there material errors in the Judge’s analysis?
Was there a failure to properly analyse the benefits of remaining in New Plymouth?
[26] I accept that another Judge may have placed different emphasis on different matters and could well have more expressly set out the advantages of remaining in New Plymouth. But the decision as a whole leaves no room for doubt that the Judge understood his task was to compare the benefits of the children remaining in New Plymouth against the benefits of them moving to the Hawke’s Bay.
[27] I accept the respondent’s submission that there are a number of passages in the judgment that support this conclusion, including: reference to the children’s relationship with Mr Martens;25 consideration of the children’s contrasting views on the two locations;26 recording that Mr Martens has established himself in New Plymouth;27 comparing the two locations’ economic advantages and disadvantages;28 noting that there would be no impact on the children’s cultural, social and religious identity in moving to the Hawke’s Bay;29 and noting that there were no fundamental differences in the quality of education between the two regions.30
[28] Moreover, no issue is taken with the Judge’s fulsome articulation of the applicable principles, which included that “[t]he ultimate objective is to determine
24 Decision under appeal, above n 1, at [28].
25 At [33].
26 At [18]–[19].
27 At [10].
28 At [41].
29 At [43]
30 At [44].
what outcome will best serve the welfare and best interests of the children in their particular circumstances.”31 The Judge followed that with a careful assessment of the issues against the s 5 factors. It is clear this experienced Family Court Judge understood that the essential issue was which of the two locations would best meet the children’s welfare and best interests. While the Judge could have used language indicating a more direct comparison between the two locations, he was not required to do so provided he identified and applied the correct principles, which he did.
[29] In these circumstances, I do not intend to engage in any further forensic analysis of the way that the judgment is structured or expressed. I am not persuaded, on a fair reading of the decision as a whole, that there was any material error in the Judge’s reasoning that has impacted on his ultimate conclusion.
Did the Judge take into account irrelevant considerations?
[30] I do not accept that the Judge took into account irrelevant considerations by referring to the reasonableness of Ms Simons’ decision to relocate, or that the parties’ original intention was to eventually move to the Hawke’s Bay when they came to New Zealand.
[31] Ms Simons’ reasons for relocating, to be closer to her fiancé, his children and her twin sister and her family, are clearly relevant matters under s 5(e). They relate to the strengthening of the children’s relationship with their family group. They impact on the children’s family and social support networks, as well as the emotional and psychological wellbeing of Lena, given her clear wish to relocate so that she can be closer to family. They also impact on Ms Simons’ emotional wellbeing, which, as the Judge found, will have a flow on beneficial effect on the children.32 Although a parent’s wellbeing is not expressly covered by the s 5 principles, s 4(4) makes it clear that the mandatory considerations in ss 4 and 5 do not prevent the Court taking into account other matters relevant to the children’s welfare and best interests. It is well established that the emotional wellbeing or psychological welfare of a parent may be relevant in this way.33
31 At [22].
32 At [38].
33 See for example S v O [Relocation] (2005) 25 FRNZ 259 (HC) at [102]–[103].
[32] Similarly, the parties’ original intention to move to the Hawke’s Bay when they came to New Zealand is a relevant consideration. It shows that Mr Martens recognised that proximity to Ms Simons’ sister (and her family) was desirable, which supports her case that such a move will enhance and strengthen the children’s family relationships and social support networks. It is also relevant to the reasonableness of Ms Simons’ decision to relocate, as well as Mr Martens’ ability to relocate and the likely impact on him of doing so.
Was the Judge’s overall conclusion wrong irrespective of the process by which he reached it?
[33] The fundamental problem with Mr Martens’ appeal is that it is principally advanced on the basis that the Court must proceed on the assumption that Mr Martens will not relocate to Hawke’s Bay. I consider that the ability and likelihood of the non- moving parent relocating is a relevant consideration that the Judge rightly placed reliance on. And to the extent that there is a challenge to the Judge’s factual finding that Mr Martens is likely to successfully relocate, I consider there is no basis for such a challenge, and I agree with the Judge’s finding.
[34] Counsel for the respondent referred me to the decision of the High Court of Australia in U v U, where the issue of a non-applicant parent relocating was addressed,34 and to an article in the Public Interest Law Journal of New Zealand that also addresses the issue.35 The article endorses the application of the approach in U v U in the New Zealand context. I agree with the author of the article, and the decision in U v U, that it is wrong to assume that a non-applicant parent cannot also relocate to be near their children.36 And it is relevant to consider their need to remain in their current location.37
[35] As occurred in this case, I agree that the non-applicant parent should be asked what they would do if relocation were permitted.38 I agree with the author of the article
34 U v U [2002] HCA 36.
35 Elizabeth Murray “[Re]location, [Re]location, [Re]location: Considering the Relocation of the Non-Applicant Parent alongside the Child and Applicant Parent in a Relocation Dispute” (2018) 5 PILJNZ 155.
36 U v U, above n 34, at [173]–[175].
37 At [174]–[175].
38 At [175].
that failing to consider all alternatives potentially deprives the child of a solution that is in their best interests. Judges can take into account a wide variety of factors when deciding relocation cases, including the likelihood of the non-applicant parent relocating and their ability to do so. I also agree that the discretion embedded in a true best interests inquiry means judges should consider these issues.39 As the author notes, while the relevant comments in U v U did not have any decisive impact on the result in that case, Australian courts are now required to examine whether the non-applicant parent also has the ability to relocate.40
[36] The author goes on to state that despite the Australian position, as at the date of the article (2018), the non-applicant’s parent’s mobility was still not sufficiently considered in New Zealand courts.41 However, she notes that some New Zealand judges have considered the non-applicant parent’s relocation. Notably, one of those cases also involved a reported decision of Judge Burns. In that case, Judge Burns suggested there is an onus on both the parents to persuade the Court of their case and the onus on a non-applicant parent includes an obligation to show why they cannot relocate, in addition to the obligation to show why the child should not relocate.42
[37]In L v B the High Court said (citing the article referred to above):43
[44] I note that a number of legal academic articles suggest that the need for mobility of the non-applicant parent should be a mandatory consideration by the Court in every relocation case because it has the potential to be the outcome that is in the best interests of the child.
[38]The Judge then said:44
[45] Associate Professor Pauline Tapp and Dr Nicola Taylor in a Family Law Journal article entitled “Relocation: A problem or a dilemma?” says the following:
Relocation decisions should reflect family life in New Zealand. Decisions should have regard to the diversity of family structures, work patterns, rates of re-partnering after separation, and the general
39 Murray, above n 35, at 165.
40 At 165.
41 At 165–166.
42 NW v MW [2006] NZFLR 485 (FC) at [10].
43 L v B [2022] NZHC 1537 (footnote omitted).
44 Citing Pauline Tapp and Dr Nicola Taylor “Relocation: a problem or a dilemma?” (2008) 6 NZFLJ 94 at 98 (footnote omitted).
geographic mobility of New Zealanders. Life in intact and separated families is fluid. In all families, parenting arrangements will change in response to work demands, financial circumstances, children’s schooling, and parental educational opportunities.
[46] I consider that is a valid observation on the present facts. The mother’s family moved because her father was made redundant. He is the wage earner of this family unit, in which the mother was living before she met the father and has continued to live since. While the mother’s obfuscation over paternity was not reasonable, this case should not be determined on punishing the mother. The welfare of the child is paramount. On the facts before me, the family moved for valid financial reasons in response to changing work and employment options, as Tapp and Taylor opine. The child’s continuity of care and security was paramount and the move to the South Island assisted that.
[39] Further, the authors of Family Law in New Zealand cite the Public Interest Law Journal article referred to above in support of the following commentary:45
The “mobility of the non-applicant parent” will influence many of those factors, like the child’s relationships or cultural identity, so it arguably should be a mandatory consideration. Of course, judges already have a discretion to consider it, but a “true best interests inquiry” would require it.
[40] In Drake v Drake, the High Court observed that the relocation decision should not be driven by a parent’s willingness to move, as the focus must be on the child.46 The Judge said that in circumstances where moving would be dramatic for both parents, the assessment must come back to the best interests of the child.47 In the Court of Appeal, it was held that the High Court had erred by taking as the starting point that the parents could share care at the child’s current location. This was because the possibility of the father moving to the current location was never an available option due to very strong work and personal connections.48 In my view, Drake v Drake is consistent with the proposition that the ability of the non-applicant parent to locate is a relevant consideration provided the Court remains focused on the best interests of the child.
45 Mark Henaghan and others Family Law in New Zealand (21st ed, LexisNexis, Wellington, 2023) vol 1 at [6A.4.01] (footnotes omitted).
46 Drake v Drake [2023] NZHC 2390 at [101]–[108].
47 At [109].
48 Drake v Drake, above n 18, at [49]–[51].
[41] Based on these authorities, in my view there is a good argument that the non- applicant parent’s ability to relocate should be a mandatory consideration when assessing the best interest of the child. But at the very least, I consider it to be a highly relevant discretionary consideration.
[42] Importantly, in this case I consider there is no basis to interfere with the Judge’s finding that there is no impediment to Mr Martens successfully relocating to the Hawke’s Bay area.49 The findings that led to that conclusion include: that he is well- qualified in a niche professional area that gives him the option of obtaining employment in the Hawke’s Bay;50 that while there will be some disruption in shifting that will have some impact on Mr Martens’ relationship with the children, this will only be during the transition to the Hawke’s Bay;51 his reasons for not wanting to move are understandable but he has not genuinely looked at the option of moving;52 and that he is resilient and his functioning will not be adversely affected by relocating.53
[43] These findings are hardly surprising in light of the evidence. That evidence included that Mr Martens has become well established in the four to five years he has been in New Plymouth. This has been through his job and by making connections in the local community through his local football club and church. However, he has no partner or other relatives in New Plymouth, he owns no property in New Plymouth and is employed in a highly skilled and sought-after profession. The following passage of evidence is particularly relevant:
Q. If his Honour orders that the children are to relocate there, would you move too?
A.It’s difficult for me to think of that situation, but it would be certainly an option to consider. The thought of my kids living so far away is terrifying.
Q.So probably you would do what you can if his Honour was to make such an order to be there in the Hawke’s Bay so you could have a shared care arrangement with your children?
49 Decision under appeal, above n 1, at [29].
50 At [33].
51 At [33].
52 At [35].
53 At [45(2)].
A. I haven’t put a lot of thought into it because it’s a – like I said it’s a terrifying situation for me to be in, but yeah, I would have to cross that bridge once we get there.
Q.Is there any particular reason why you haven’t put any thought into it?
A. Cos it’s scary, it’s scary with the realisation of my kids moving so far away from me and I’m not then in the situation to see them as much as I am now.
Q.This is something that [Ms Simons] I think has been quite clear on that she would love it if you were to move as well. So how can you say this is not something you’ve put too much thought in? [Ms Simons’] narrative hasn’t changed. Is it just something you’re not willing to consider at all or? Tell me?
A.If the situation arises that I have to consider it, then I will, but as of now, the situation is pretty ideal where the kids have 50/50 shared care on a consistent basis.
Q. And if his Honour says they can go to the Hawke’s Bay, then it’s probably best that that continue, correct?
A. For the sake of the children, yes.
Q. And of course, you can play football there and continue to coach the children’s teams.
A.I’m not sure what that would look like practically, but theoretically, yes.
[44] When this evidence is combined with the undisputed evidence that Mr Martens is a dedicated and devoted father, I consider there is a high likelihood that Mr Martens will also relocate. Although this will have some initial impact on his wellbeing, he will be able to obtain employment and re-establish himself in the Hawke’s Bay without long-term adverse effect. It is perfectly understandable he does not want to shift again, but his proven history of successfully relocating over the course of his life establishes that he is resilient and will cope.
[45] These findings are highly relevant to the assessment of whether relocation should be permitted.54 I will now undertake the task of weighing relevant matters in
54 The findings can be contrasted with the evidence in Drake v Drake, above n 18, at [49], where shared care following relocation was never an available option, as the father had made it clear that he could not relocate due to very strong work and personal connections.
forming my own view about whether relocation or remaining in New Plymouth is in the children’s best interests.
[46] It is helpful to start by considering the s 5 principles while bearing in mind that the focus should be on factors relevant to this particular case.
Section 5(a) – safety
[47] The Judge found there were no safety issues of the children in their mother’s care and the only concern was Mr Martens’ misuse of alcohol. This appears to have been the major source of tension between him and Lena. The Judge made the order sought requiring Mr Martens not to consume alcohol when the children are in his care and was satisfied that with that condition in place the father’s care is safe, and no other safety concerns arise. I agree with the Judge that this factor is not relevant in this case.
Section 5(b) – children’s care primarily the responsibility of his or her parents and guardians
[48] It is undisputed that both parties should have as much involvement in their children’s lives as possible. They are both dedicated and highly capable parents. If the relocation application is not granted, there is no doubt that the children will have both parents in New Plymouth to remain highly involved in their lives without any concerns about distance, with Ms Simons giving evidence that she would remain in New Plymouth. Of course, if Mr Martens chooses not to move there will be much less opportunity to be involved in the children’s lives. However, this factor needs to be balanced against the finding that it is highly likely that Mr Martens will move to the Hawke’s Bay and successfully re-establish himself there.
Section 5(c) – ongoing consultation and co-operation between the parents
[49] The current communication difficulties between the parties, noted by the Judge,55 are not likely to be improved should Mr Martens decide not to move. As Mr Martens submits, having both parents in the same city provides more opportunities for them to demonstrate co-operation and allows for more flexibility. Again, this must
55 Decision under appeal, above n 1, at [29].
be balanced against the finding that Mr Martens is highly likely to move to the Hawke’s Bay if the application is granted.
Section 5(d) – continuity
[50] Again, this factor must be considered against the finding that it is highly likely that Mr Martens will successfully relocate. This means the continuity of shared care between the parents is very likely to remain the same with some initial disruption while Mr Martens relocates. Levi will have his current continuity of schooling, activities and friendships disrupted even if his father moves, but he is still young and likely to quickly adapt. Lena is going to have a major change in any event when transitioning to secondary school next year.
Section 5(e) – preservation and strengthening of relationships with parents and family group
[51] This principle is in stark focus in this case. It requires weighing the slight risk that the children’s relationship with their father will be harmed by him remaining in New Plymouth against the benefits to the children of living in the same area as their soon-to-be stepsiblings, and their aunt, uncle and cousins. I do not accept Mr Martens’ submission that the ability to continue to strengthen the existing relationships with the Hawke’s Bay family from New Plymouth provides an answer to this issue. Mr Martens rightly says that preservation of his relationship with the children will be harmed by the distance between the two locations. It is self-evident that the distance will be a similar impediment to the strengthening of the relationships with the family members based in the Hawke’s Bay.
Section 5(f) – children’s identity
[52] I agree with the Judge that this is not a relevant consideration in the circumstances of this case.56
56 Decision under appeal, above n 1, at [30].
Section 5(g) – children’s participation
[53] The children have participated through their court-appointed lawyer in the Family Court. Their views are relevant but cannot be determinative.57 I consider the Judge was right to place substantial weight on Lena’s views. She is about to start secondary school next year. She is a confident, talented and mature young person. She has formed a close relationship with her soon-to-be stepsister who will be a year ahead of her at [redacted].58 She is excited about the move and very upset about the delay that has been caused to it by these proceedings. She has fully participated in expressing her views to Ms Manning and the Judge when given the opportunity.
[54] Levi is only eight years old and has been more reluctant to express his views recently (he has chosen to wait in the car on more recent visits to Ms Manning’s office and declined speaking with the Judge). He understandably does not want to move away from his established school, football club and friends. However, I agree with the Judge that his views seem to be influenced by the assumption that his father will not move with him, which is incorrect. In these circumstances, I consider the Judge was right to give less weight to Levi’s views.
Overall assessment
[55]I will now undertake a comparison of the two locations.
First scenario: the relocation application is granted
[56] The first scenario is that the relocation application is granted, and Ms Simons purchases a house with her fiancé in Hawke’s Bay as planned (understandably, they do not want to do this until the relocation decision is finalised). Lena attends High School with her stepsister and Levi attends a local primary school. This will enable Ms Simons and the children to be close to her fiancé, the children’s soon-to-be stepsiblings, Ms Simons’ twin sister and her family (including her husband’s parents, with whom the children have formed a grandparent-child type relationship) and develop and strengthen those relationships.
57 Brown v Argyll [2006] NZFLR 705, (2006) 25 FRNZ 383 at [49].
58 I have received confirmation that Lena will be accepted to [redacted] under the school’s stepsibling entry criteria.
[57] In this scenario, it is highly likely that Mr Martens will successfully relocate to the Hawke’s Bay. This will cause some disruption to his life and the continuity of shared care of the children during the transition period, but he will quickly establish himself and continue to be a devoted father sharing equally in the care of his children. On the other hand, there is a slight risk that he might decide not to move, and this will have a detrimental impact on his ability to continue to be involved in the children’s lives and share equally in their care.
[58] This scenario would give full effect to Lena’s wish to move to the Hawke’s Bay and attend [redacted] with her soon-to-be stepsister. While it will cause disruption to Levi’s settled life in New Plymouth, he is a thriving and resilient eight-year-old who is likely to re-establish himself in the Hawke’s Bay with little difficulty. There is also a high likelihood that the children’s relationship with their father will continue unchanged once he relocates, and of course the slight risk that this will not occur.
Second scenario: the relocation application is declined
[59] The second scenario is that Ms Simons does not relocate and instead her fiancé relocates to New Plymouth. This will mean he will lose the ability to share in the care of his own children to the extent he does currently, which is relevant to his and Ms Simons’ wellbeing and the flow on effect of this on the children. It will deprive Lena, Levi and Ms Simons of the opportunity to enhance and strengthen their relationships with their soon-to-be stepsiblings/stepchildren. This is likely to be felt most keenly by Lena, who will not be able to live and attend secondary school with her soon-to-be stepsister. It will also mean that the children and Ms Simons will be deprived of the opportunity to strengthen their relationship with Ms Simons’ sister and her family.
[60] In this scenario, Lena will be denied her clear wish to move to the Hawke’s Bay. She is already angry about the delay that has been caused to the move by Mr Martens’ challenge to the relocation application. It therefore seems likely that this scenario will damage her already precarious relationship with her father (at least in the short term).
[61] This scenario would accord with Levi’s wish to not move away from his current settled life in New Plymouth. However, he will also be deprived of the opportunity to strengthen his relationships with family in the Hawke’s Bay.
[62] In this scenario, Ms Simons will be denied the ability to enhance and strengthen her relationships with her soon-to-be stepchildren, her sister and her sister’s family. She will have to live with the knowledge that her circumstances have required her fiancé to put their relationship above the shared care of his children. I consider these matters will impact on Ms Simons’ overall wellbeing. I agree with the Judge that relocation will improve Ms Simons’ wellbeing, which will have flow on beneficial effects on the children.59
Conclusion
[63] These decisions are never easy, but once the high likelihood of Mr Martens successfully relocating to the Hawke’s Bay is taken into account, I agree with the Judge that relocation is in the best interests of the children. While there will be disruption to their settled lives in New Plymouth, Lena will be moving schools anyway and has a strong desire to move to the Hawke’s Bay for reasons I consider to be entirely valid. The opportunity for her to forge a strong, lasting relationship with a stepsister close to her in age, who will be attending the same secondary school, should not be underestimated.
[64] As a thriving and resilient eight-year-old, Levi will adapt quickly to the Hawke’s Bay. Relocation will strengthen both children’s relationships with their soon- to-be stepsiblings, aunt, uncle and cousins (and their uncle’s wider family). It will also enhance their mother’s overall wellbeing, which will have beneficial flow on effects for the children. The negligible risk is that Mr Martens will not successfully relocate, and the temporary impact of his relocation, is insufficient to outweigh the clear benefits to the children of relocation.
[65] In terms of the timing of the relocation, as the Judge was satisfied that the parties would communicate about this and act in the children’s best interests, he
59 Decision under appeal, above n 1, at [38].
ordered that the right to relocate commenced immediately. I have been provided with confirmation that places are available for the children in schools in the Hawke’s Bay should the relocation take place in time for them to start the final school term in 2025 (commencing 6 October). This is Ms Simons’ current preference, to enable Lena to have a term at [redacted] with a peer group that will include students who will be starting [redacted] next year. In these circumstances, I see no reason to disturb the Judge’s approach.
[66]I therefore dismiss the appeal.
Costs
[67] My preliminary view is that Ms Simons is entitled to costs on a 2B basis. If costs cannot be agreed, the parties are to file memoranda within 10 working days of delivery of this judgment (limited to five pages) and reply memoranda five working days thereafter (limited to two pages). I will determine costs on the papers.
La Hood J
Solicitors:
Mooney & Webb, New Plymouth for Appellant Govett Quilliam, New Plymouth for Respondent Till Henderson, New Plymouth for Children
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