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Mikova v Tova

Mikova v Tova

Case [2016] NZHC 1983 24 August 2016

International Child Abduction

Hague Convention

Grave Risk

Best Interests of the Child

Paramount Consideration

International Child Abduction

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NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-000960 [2016] NZHC 1983

BETWEEN
MIKOVA

Appellant

AND

TOVA Respondent

Hearing: 20 July 2016

Appearances:

G M Cameron and S Chandra for Appellant
I M Blackford and H G Holmes for Respondent

Judgment:

24 August 2016

JUDGMENT OF PALMER J

This judgment is delivered by me on 24 August 2016 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors/Counsel:
G M Cameron, Barrister, Auckland
Turner Hopkins, Auckland
I M Blackford, Barrister, Auckland

MIKOVA v TOVA [2016] NZHC 1983 [24 August 2016]

Summary

[1] Ms Tova and Mr Mikova met and married in New Zealand and their son Andrew was born in New Zealand six years ago.1 The three of them have lived in Bulgaria for the last four years, where Ms Tova and Mr Mikova divorced in 2015. A few months later Ms Tova brought Andrew back to New Zealand without Mr Mikova’s knowledge or consent. The New Zealand Family Court ordered Andrew’s return to Bulgaria under the Hague
Convention on the Civil Aspects of International Child Abduction (Hague

Convention). Ms Tova appeals.

[2] To succeed in her appeal Ms Tova has to show, on the balance of probabilities, there is a grave risk Andrew’s return would expose him to psychological harm or otherwise place him in an intolerable situation. She argues Bulgaria’s system of family law cannot be trusted to protect Andrew from that grave risk given the alleged violence against her by Mr Mikova and widespread corruption of the Bulgarian legal system. Mr Mikova denies the allegations and offers evidence from the Bulgarian Ministry of Justice. I do not consider Ms Tova’s submissions are sufficiently established by the evidence and I dismiss the appeal.

Facts

[3] Ms Tova was born in Bulgaria and moved to New Zealand with her family at the age of 16. Although her family went back to Bulgaria Ms Tova studied and worked in New Zealand and became a New Zealand citizen. In
2006 in New Zealand she met Mr Mikova, also from Bulgaria and also a New Zealand citizen. They moved in together. In October 2009 they married and in May 2010 they had Andrew who is a dual citizen of New Zealand and Bulgaria. In 2011 they all moved to the United Kingdom, via Bulgaria, and bought a house. In April 2012 they all moved to Bulgaria and sold their
house in London.

1 The names of the boy and his parents have been changed to reflect the anonymisation order of the Family Court judgment Mikova v Tova [2016] NZFC 2814 at [73](d) that is required under ss 11B and 11C of the Family Courts Act 1980.

[4] On 19 February 2015 the Sofia Regional Court, by consent,…

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 Mikova v Tova

Details

AGLC: Mikova v Tova [2016] NZHC 1983
Case: [2016] NZHC 1983
Decision Date: 24 August 2016

CaseChat Overview and Summary

Mikova v Tova is an appeal by Ms Tova of the Family Court’s order that her son Andrew be returned to Bulgaria, his habitual residence. The appeal was dismissed. Ms Tova argued that there was a grave risk that Andrew would be exposed to physical or psychological harm or otherwise placed in an intolerable situation if he was returned to Bulgaria. The Court found that there was no evidence that Andrew himself had suffered, or was likely to suffer, physical abuse from his father Mr Mikova. The Court also found that Ms Tova’s evidence did not demonstrate that Bulgaria’s system of family law and child protection was systemically ineffective and therefore likely to fail to protect Andrew from the grave risk of substantial psychological harm. Finally, the concerns expressed by Ms Tova were best expressed as concerns about physical or psychological harm rather than substantial deprivation of other necessities of life or other human rights.

Orders